Vrbis Cantuar. Antiq. pag. 362 363. ubi de Decano Christianitatis But the Deans here specially meant and intended are only such as with the Chapters according to the ancient and genuine use thereof are as Senatus Episcopi to assist the Bishop in his Jurisdiction Cathedral Churches being the first Monuments of Christianity in England So Dr. Hacket in Parliament 1640. The Office and Ecclesiastical Dignity of Archdeacons which you next meet with in this Abridgment is of very great Antiquity There was a sharp Contest above Five hundred years since in the time of King H. 2. between the Archdeacons and the Priors of Winchester and Ely touching the Presentation of their Bishops Elect unto the Metropolitan in order to their Consecration wherein by the Interlocutory of the said Metropolitan the Priors had the Victory Hora congrua Consecrationis instante R. Wintoniensis R. Elyensis Archidiaconi cum Officiales Episcoporum dicantur ad suum spectare contendebant Officium Electiones c. praesentare Metropolitano W. Wintoniensis S. Elyensis Priores in contrarium sentiebant quam enim in Ecclesiis Cathedralibus ubi Canonici divinis mancipantur obsequiis Decani sibi vindicant dignitatem hanc si Monachorum Conventus in Episcopali sede praemineat sibi jure possunt vendicare Priores Sed ut omnis in posterum amputetur occasio Litigandi de Interlocutoria Metropolitani sententia c. Wintoniensis Elyensis Electiâ— ad Priorum suorum praesentationem recepti ad Priorum suorum postulationem Episcopi Consecrati sunt Radulph de Diceto Imag. Hist. By the 25th Canon of the Council of Lateran under Pope Alexander it was Ordained That an Archdeacon in his Visitation should not exceed the numqer of Five or Seven Horsemen for his Retinue Chron. Gervas de Temp. H. 2. And as to the Visitation-Articles every Bishop and Archdeacon heretofore framed a Model thereof for themselves but at the Convocation in the year 1640. a Body thereof was composed for the publick use of all such as exercised Ecclesiastical Jurisdiction And by the foresaid Canon of the Council of Lateran it was further Ordained That no Archdeacon in his Visitation should presume to exact from the Clergy more than was justly due Archidiaconi autem sive Decani nullas exactiones in Presbyteros seu Clericos exercere praesumant Notwithstanding what toleration the Law allows as to Archbishops Bishops Archdeacons c. as to the number of their Retinue in their Visitations yet therein respect is ever to be had to the condition of the Churches Persons and Places Visited as may plainly appear by the express words of the Canon aforesaid viz. Sane quod de numero evectionis secundum tolerantiam dictum est in illis Locis poterit observari in quibus ampliores sunt redditus Ecclesiasticae facultates In pauperibus autem Locis tantam volumus teneri mensuram ut ex accâ—ssu majorum minores non debeant gravari ne sub tali indulgentia illi qui paucioribus Equis uti solebant hactenus plurium sibi credant potestatem indultam So that no Archdeacon or other having Right of Visitation ought by what the Law allows them in that case to exercise their power in this matter beyond what the condition of the place Visited will reasonably admit In all Visitations of Parochial Churches made by Bishops and Archdeacons the Law hath provided that the Charge thereof should be answered by the Procurations then due and payable by the Inferiour Clergy wherein Custome as to the Quantum shall prevail but the undue Demands and supernumerary Attendants of Visitors have Anciently as well as in Later times given the occasion of frequent Contests and Complaints For prevention whereof it was Ordained by the 25th Canon of the Council of Lateran under Pope Alexander circa An. 1179. in haec verba viz. Cum quidam Fratrum Coepiscoporum nostrorum ita graves in Procurationibus subditis suis existunt ut pro hujusmodi causa interdum ipsa Ecclesiastica Ornamenta subditi compellantur exponere longi temporis victum brevis hora consumat Quocirca statuimus Quod Archiepiscopi Parochias Visitantes pro diversitate Provinciarum facultatibus Ecclesiarum 40 vel 50 evectionis Numerum Episcopi 20 vel 30 Cardinales vero 20 vel 25 nequaquam excedunt Archidiaconi vero Quinque aut Septem Decani Constituti sub Episcopis Duobus Equis contenti existant Prohibemus etiam ne subditos suos talliis exactionibus Episcopi gravare praesumant Archidiaconi autem sive Decani nullas exactiones vel tallias in Presbyteros seu Clericos exercere praesumant vid. Chron. Gervas de Temp. H. 2. col 1455. can 25. whereby it is evident that these Procurations ought to be so moderated by the Bishops as that they may not become a burthen or grievance to the Clergy The lawfulness of these Episcopal and Archidiaconal Rights of Procurations are not to be called into question at this day for in all the Establishments and Ordinations of Vicarages upon the Ancient Appropriations of Churches you shall find these Procurations excepted and reserved in statu Quo As appears by these of Feversham and Middleton when by William the Conqueror they were Appropriated to the Abbey of St. Austins as also by these of Wivelsberg Stone and Brocland in Kent when they were Appropriated to the same Abbey by the Charter of King Ed. 3. and in that of the Parish of Stone aforesaid Pentecostals by name are reserved in these words Nihilominus solvet Procurationem debitam Archidiacono Cantuariensi Visitanti expensas pro Pentecostalibus faciendis vid. Chron. W. Thorne Appropria Eccles col 2089. Hist Angl. What Procurations the Archbishop of Messena who arrived in England as the Popes Legate in the year 1261. exacted and extorted from the Bishops and Abbots with great violence in the Reign of King H. 3. you may find in Matthew Paris But by the Fourth Canon of the Council at Rome under Pope Alex. 3. An. 1180. it was Ordained That Bishops and Archbishops in their Visitations should not overcharge the Church of their Bounds with unnecessary charges and expences specially the Churches that are poor No sooner had Princes in Ancient times assign'd and limited certain Matters and Causes controversal to the cognizance of Bishops and to that end dignified the Episcopal Order with an Ecclesiastical Jurisdiction but the multiplicity and emergency of such affairs requir'd for the dispatch and management thereof the assistance of such subordinate Ordinaries as being experienc'd in the Laws adapted to the nature of such Causes might prove a sufficient Expedient to prevent the avocation of Bishops by reason of such Litigious interpositions from the discharge of the more weighty Concerns of that Sacred Function Hence it is supposed that the Ecclesiastical Office of Diocesan Chancellors Commissaries and Officials originally came into use and practice the place of their Session anciently styled the Bishops
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
Conviction of Perjury in the Spiritual Court according to the Ecclesiastical Laws which although as aforesaid it be a just Cause of Deprivation must yet be signified by the Ordinary to the Patron so also must that Deprivation which is caused by an Incapacity of the party Instituted and Inducted for want of Holy Orders 3. By the Statute of 21 H. 8. if an Incumbent having a Benefice with Cure of Souls value 8 l. per ann take another with Cure immediately after Induction thereunto the former is void and void without any Declaratory Sentence of Deprivation in the Ecclesiastical Court in case the Second Benefice were taken without a Dispensation and of such Avoidance the Patron is to take notice at his peril And as Avoidance may be by Plurality of Benefices incompatible without Dispensation so also by not Subscribing unto and not reading the 39 Articles as aforesaid which by the Statute of 13 Eliz. c. 12. is a Deprivation ipso facto as if the Incumbent were naturally dead insomuch that upon such Avoidance there need not any Sentence Declaratory of his Deprivation but the very pleading and proof of his not Reading the said Articles is a sufficient Barr to his claim of Tithes without any mentioning at all his being deprived in the Ecclesiastical Court Yet Sir Simon Degge in his Parsons Counsellor putting the Question What shall be intended by the words Deprived ipso facto as whether the Church shall thereby immediately become void by the Fact done or not till Conviction or Sentence Declaratory modestly waives his own Opinion and says it is a Quaere made by Dyer what shall be intended by the words ipso facto Excommunicate for striking with a Weapon in the Church-yard albeit by the Canon Law which condemns no man before he be heard requiritur sententia Declatoria 4. Touching Deprivation by reason of Miscreancy the Cardinal who by the Bishop of Durham was Collated to a Benefice with Cure is it seems the standing President in which case it was Agreed that notwithstanding the Cardinal 's being deprived for his Miscreancy in the Court of Rome yet whether he were Miscreant or not should be tried in England by the Bishop of that Diocess where the Church was 5. Among the many Causes of Deprivation forementioned you do not find that of Marriage in the Priest which was anciently practicable as appears by what the Lord Coke reports touching an Incumbent in the time of King Ed. 6. who being Deprived in Queen Maries daies partly because he was a Married person and partly because of his Religion was restored again in the time of Queen Elizabeth In whose Case it was Adjudged That his Deprivation was good until it was voided by a Sentence of Repeal whereby he became Incumbent again by virtue of his First Presentation without any new Presentation Institution or Induction In those days it was held That the Marriage of a Priest was a sufficient cause to deprive him of his Benefice Mich. 4. Ma. Dy. 133. 6. In the Case where a meer Lay-man is Presented Instituted and Inducted he is notwithstanding his Laity such an Incumbent de facto that he is not Deprivable but by a Sentence in the Ecclesiastical Court but then the Ordinary is in that case to give Notice of such Deprivation to the Patron otherwise in case the Ordinary for that cause refused him when he was Presented by the Patron But where Non-age is the cause of Deprivation as when one under the age of 23 years is Presented Notice is to be given it having been Adjudged That no Lapse shall incurr upon any Deprivation ipso facto without Notice seeing the Statute of 13 Eliz. 12. says nothing of Presentation which remaining in force the Patron ought to have Notice 7. As in the Admission of a Clerk to a Benefice whatever is a Legal impediment will also be a sufficient cause of Deprivation so in reference to both the Law takes care to distinguish between that which is only Malum prohibitum and that which is Malum in se and therefore doth not hold the former of them such as frequenting of Taverns unlawful Gaming or the like to be a sufficient cause of a Clerks Non-admission to a Benefice or of his Deprivation being Admitted Otherwise if you can affect him with that which is Malum in se in which case Notice is to be given the Patron by the Ordinary of the Cause of his Refusal or Deprivation as also it is in case of Deprivation for not Subscribing or not Reading the 39 Articles of Religion according to the foresaid Statute of 13 Eliz. 12. which Notice ought to be certain and particular a general Notice of Incapacity not sufficing in which case an Intimation of such particular Incapacity affixed on the Church-door if the Patron be in partibus longe remotis or may not easily be affected therewith will answer the Law Vid. 18 Eliz. Dyer 346. 22 Eliz. Dyer 369. 16 Eliz. Dyer 327. Co. par 6. 29. Green 's Case 8. It is evident from the Premisses That a Deprivation from an Ecclesiastical Benefice will follow upon a Disgrading or Degradation from the Ecclesiastical Function or Calling for this Degradation is the Incapacitating of a Clerk for discharge of that holy Function for it is the punishment of such a Clerk as being delivered to his Ordinary cannot purge himself of the Offence whereof he was convicted by the Jury And it is a Privation of him from those holy Orders of Clerkship which formerly he had as Priesthood Deaconship c. And by the Canon Law this may be done Two waies either Summarily as by Word only or Solemnly as by devesting the party degraded of those Ornaments and Rites which were the Ensigns of his Order or Degree But in matters Criminal Princes anciently have had such a tender respect for the Clergy and for the credit of the whole profession thereof That if any man among them committed any thing worthy of death or open shame he was not first executed or exposed to Publick disgrace until he had been degraded by the Bishop and his Clergy and so was executed and put to shame not as a Clerk but as a Lay-Malefactor which regard towards Ecclesiasticks in respect of the dignity of the Ministry is observed by a Learned Author to be much more Ancient than any Papistical Immunity and is such a Priviledge as the Church in respect of such as once waited on the Altar hath in all Ages been honoured with 9. Robert Cawdry Clerk Rector of the Church of L. was deprived of his Rectory by the Bishop of London and his Collegues by virtue of the high Commission to them and others directed because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common Prayer but the Form of the Sentence was That the said Bishop by and with the assent and
whatsoever Name or Names they may be called in their Convocation in time coming which alwaies shall be assembled by the Kings Writ unless the same Clergy may have the Kings most Royal assent and License to make promise and execute such Canons Constitutions and Ordinances Provincial or Synodical upon pain of every one of the said Clergy doing the contrary to this Act and thereof convicted to suffer Imprisonment and making Fine at the Kings will Since this year from Archbishop Cranmer to this day all Convocations are to have the Kings leave to debate on matters of Religion and their Canons besides his Royal assent an Act of Parliament for their Confirmation And as to the General Councils there are not any of them of use in England except the first Four General Councils which are established into a Law by King and Parliament The Learned Bishop Prideaux in his Synopsis of Councils gives us the definition of Synodographie and says It is such a Methodical Synopsis of Councils and other Ecclesiastical Meetings as whereby there may be a clear discovery to him that doubts how any Case may be enquired after and what may be determined concerning the same And then immediately after gives us the definition of a Council which he calls a Free Publick Ecclesiastical Meeting especially of Bishops as also of other Doctors lawfully deputed by divers Churches for the examining of Ecclesiastical Causes according to the Scriptures and those according to the power given by Common Suffrages without favour of parties to be determined in matters of Faith by Canons in cases of Practice by Presidents in matters of Discipline by Decrees and Constitutions Of these Councils he observes some to have been Judaical others Apostolical others Oecumenical some Controverted others Rejected and some National to all which he likewise adds Conferences 1 Under the Title of Judaical Councils he comprehends the more solemn Meetings about extraordinary affairs for the Confirming Removing or Reforming any thing as the matter required Such he observes to have been at Sichem under Josuah and Eleazer Josh 24. At Jerusalem the first under David Gad and Nathan being his Assistants 1 Chro. 13. At Carmelita under Ahab and Elias 1 King 18. At Jerusalem the Second under Hezekiah 2. Chro. 29. At Jerusalem the Third under Josiah and Hilkiah 2 Kin. 33. 2 Chro. 34. At Jerusalem the Fourth under Zorobabel and Ezra and the Chief of the Jews that return'd from the Captivity of Babylon And lastly that which is called the Synod of the Wise under John Hircanus Genebrand Chron. l. 2 p. 197. 2 The Apostolical Councils he observes to have been for the substituting of Matthias in the place of Judas Act. 1. For the Election of Seven Deacons Act. 6. For not pressing the Ceremonial Law Act. 15. 11. For the toleration of some Legal Ceremonies for a time to gain the Weak by such condescension Matth. 21. 18. For composing the Apostles Creed For obtruding to the Church 85 Canons under the notion of the Apostles authority concerning which there are many Controversies Lastly for the Meeting at Antioch where among Nine Canons the Eighth commanded Images of Christ to be substituted in the room of Heathenish Idols the other pious Canons being destitute of the Synods authority vid. Bin. Tom. 1. p. 19. Longum p. 147. 3 Of Oecumenical or General Councils some were Greek or Eastern others were Latin or Western The more Famous of the Oecumenical Greek Councils were the Nicene the first of Constantinople the first of Ephesus the first of Chalcedon Of Constantinople the second of Constantinople the third The Nicene the second The more Famous of the Oecumenical Latin Councils were at Ariminum the Lateran at Lions at Vienna the Florentine the Lateran the fifth and lastly at Trent 4 Of Controverted Councils if that distinction be admissable according to the Classis thereof digested by Bellarmine the Computation is at Constantinople the fourth at Sardis at Smyrna at Quinisext at Francfort at Constance and at Basil 5 Of Rejected Councils whereby are intended such as either determine Heretical Opinions or raise Schisms the Computation is at Antioch at Milain at Seleucia at Ephesus the second at Constantinople at Pisa the first and at Pisa the second 6 Of National Synods which comprehend the Provincials of every Metropolitan or Diocesan Bishop the distribution is into Italian Spanish French German Eastern African Britain 7 To these may be added Ecclesiastical Conferences which were only certain Meetings of some Divines wherein nothing could be Canonically determined and therefore needless to be here particularly inserted vid. B. Prideaux Synops of Counc vers fin The grand Censure of the Church whereby it punisheth obstinate Offenders is by way of Excommunication which though the Canonists call Traditio Diabolo or giving the Devil as it were Livery and Seizin of the Excommunicate person yet the Romanists have a Tradition that St. Bernard Excommunicated the Devil himself Sanctus Bernardus plenus virtutibus quadam die praesentibus Episcopis clero populo Excommunicavit quendam Diabolum Incubum qui quandam mulierem in Britannia per septeunium vexabat sic Liberata est ab eo Chron. Jo. Bromton de Temp. H. 1. A miraculous Excommunication and a Sovereign Remedy against Diabolical incubations The Excommunication which St. Oswald pronounced against one who would not be perswaded to be reconciled to his Adversary had nothing so good though a more strange effect for that Excommunicated him out of his Wits and had it not been for Wolstan who as miraculously cur'd him you might have found him if not in Purgatory then in Bedlam at this day Illi cujus es says Sanctus Oswaldus Te commendo carnem Sathanae tuam trado Statim ille dentibus stridere spumas jacere caput rotare incipit Qui tamen à Wolstano sanatus cum Pacem adhuc recusaret iterum tertio est arreptus simili modo quousque ex corde injuriam remitteret offensam If you have not faith enough to believe this on the Credit of Abbot Brompton who Chronicled from the year 588 in which St. Austin came into England to the death of King Richard the First which was in the year 1198. if you have not I say faith enough for the premisses you are not like to be supplied with any on this side Rome unless you have it from Henry de Knighton Canon of Leyster who wrote the Chronicle De Eventibus Angliae from King Edgars time to the death of King Richard the Second for he in his Second Book de Temp. W. 2. doth put it under his infallible pen for an undeniable Truth And indeed is much more probable than what the said Abbot reports touching St. Austins raising to life the Priest at Cumpton in Oxfordshire 150 years after his death to absolve a penitent Excommunicate that at the same time rose also out of his grave and walked out of the Church at St. Austins command That no
17. is to that purpose 11. In former times many Bishops had their Suffragans who were also Consecrated as other Bishops were These in the absence of the Bishops upon Embassies or in multiplicity of business did supply their places in matter of Orders but not in Jurisdiction These were chiefly for the ease of the Bishops in the multiplicity of their Affairs ordained in the Primitive times called Chorepiscopi Suffragan or Subsidiary Bishops or Bishops Suffragans and were Titular Bishops Consecrated by the Archbishop of the Province and to execute such Power and Authority and receive such profits as were limited in their Commissions by the Bishops or Diocosans whose Suffragans they were What Towns or Places to be the Sees of Bishops Suffragans and how many to a Diocess and in what Diocesses appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop or some other Bishop desire the same In which case the Bishop presents Two able persons for any place allowed by the said Act of Parliament whereof his Majesty doth chuse one but at present there are no Suffragan Bishops in England They were no other than the Chorepiscopi of the Primitive Times Subsidiary Bishops ordained for easing the Diocesan of some part of his burthen as aforesaid by means whereof they were enabled to perform such Offices belonging to that Sacred Function not limited to time and place by the ancient Canons by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper Diocess Of these there were twenty six in the Realm of England distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination The Names and Number whereof together with the Jurisdiction and preheminences proportioned to them the Reader may peruse in the Act of Parliament made An. 26 H. 8. 12. According to the Temporal Laws of this Land if a Bishop grant Letters of Institution under any other Seal than his Seal of Office and albeit it be out of his Diocess yet it is good For in Cort's Case against the Bishop of St. Davids and others where the Plaintiff offered in evidence Letters of Institution which appeared to be sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there and which Letters were made also out of the Diocess It was held That they were good enough albeit they were sealed with another Seal and made out of the Diocess for that the Seal is not material it being an Act made of the Institution And the writing and sealing is but a Testimonial thereof which may be under any Seal or in any place But of that point they would advise 13. A Bishop if he celebrate Divine Service in any Church of his Diocess may require the Offerings of that day He may sequester if the King present not and 12 H. 8. 8. by Pollard he must see the Cure served if the person fail at his own Costs He may commit Administration where Executors being called refuse to prove the Will He hath power of distribution and disposing of Seats and charges of Repairs of the Churches within his Diocess He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other but if he will chuse the Clerk of either at his peril he ought at his peril to receive him that hath Right by the Statute He may License Physicians Chirurgions Schoolmasters and Midwives He may Collate by Lapse He may take competent time to examine the sufficiency and fitness of a Clerk He may give convenient time to persons interested to take notice of Avoidances He is discharged against the true Patron and quit of Disturbance to whom it cannot be imputed if he receive that Clerk that is in pursuance of a Verdict after Inquest in a Jure Patronatus He may have Six Chaplains and every Archbishop may have Eight Chaplains He may unite and consolidate small Parishes and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure joyn and associate himself to the Justices of Oyer and Terminer or to the Justices of Assize at the open and general Sessions to be holden at any place within his Diocess in Causes of the Church And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly and is commonly styled the Ordinary of that Diocess where he doth exercise his Episcopal Authority and Jurisdiction In Parliament Bishops as Barons may be present and Vote at the Trial and Arraignment of a Peer only before Sentence of death or loss of Member be pronounced that they may have no hand in blood in any kind they have by Canon Law the Priviledge and Injunction to absent themselves and by Common Law to make Proxies to vote for them 14. ORDINARY according to the acceptation of the Common Law with us is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical immediate to the King He is in Common understanding the Bishop of the Diocess who is the Supervisor and for the most part Visitor of all his Churches within his Diocess and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his Diocess in jure proprio non per deputationem and therefore it is his care to see that the Church be provided of an able Curate Habet enim Curam Curarum and may execute the Laws of the Church by Ecclesiastical Censures and to him alone are made all Presentations to Churches vacant within his Diocess Ordinarius habet locum principaliter in Episcopo aliis Superioribus qui soli sunt Vniversales in suis Jurisdictionibus sed sunt sub eo alii Ordinarii hi videlicet quibus Competit Jurisdictio Ordinaria de jure privilegio vel consuetudine Lindw cap. Exterior tit de Constitutionib 15. The Jurisdiction of the Ordinary or Bishop as to the Examination of the Clerk or as to the Admission or Institution of him into a Benefice is not Local but it follows the person of the Ordinary or Bishop wheresoever he is And therefore if a Clerk be presented to the Bishop of Norwich to a Church which is void within the Diocess of Norwich who is then in London or if it be to a Bishop of Ireland who is then in England and in London the Ordinary may examine the Clerk or give him Admission or Institution in London And so it was adjudged 16. The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first for as he
Bishops Visitation mutually to certifie each other under their Hands and Seals the Names and Crimes of all such as were Presented in the said Visitation Nor shall any Chancellor or other Ecclesiastical Judge suffer any Judicial Act to be sped otherwise than in open Court or in presence of the Register or his Deputy or other person by Law allowed to speed the same nor shall have without the Bishops consent any more Seals of Office than one Nor shall any man be admitted a Chancellor or to exercise any Ecclesiastical Jurisdiction under the age of 26 years and learned in the Civil and Ecclesiastical Laws and is at least a Master of Arts or Bachelor of Law and shall first have taken the Oath of Supremacy in the Bishops presence or in open Court and have subscribed the Articles of Religion and swear that to the utmost of his understanding he will deal uprightly and justly in his Office without respect favour or reward 4. Sutton Chancellor of the Bishop of Gloucester moved for a Prohibition to stay a Suit before the Commissioners Ecclesiastical for that Articles were there exhibited against him because he being a Divine and having a Rectory with Cure of Souls and never brought up in the Science of the Civil or Canon Laws or having any Intelligence in them took upon him the Office of the Chancellor of the Bishop of Gloucester whereas there were divers Canons and Ecclesiastical Constitutions and also directions from the late King James and from the King that now is That none should be admitted to have those Offices of Chancellorship to a Bishop unless he were instructed and learned in the Canon and Civil Laws because divers Cases triable in the said Court are of weight and the Judges there ought to have knowledge of the Laws otherwise they cannot administer Right to the Kings Subjects Upon these Articles Mr. Sutton being examined confessed that he was a Divine and had a Spiritual Living and that the Office of the Chancellorship of the Bishop is grantable for life and that such a Bishop of Gloucester had granted to him the Office for his life which the Dean and Chapter had Confirmed whereby he had a Freehold therein and ought to enjoy it during his life And that notwithstanding this Answer they intended to proceed against him wherefore he prayed to have a Prohibition but the Court denied it for if he be a person unskilful in these Laws and by Law ought not to enjoy it they may peradventure examine that for although a Lay-person by his Admission and Institution to a Benefice hath a Freehold yet he may be sued in the Spiritual Court and deprived for that Cause but if he hath wrong he may peradventure by Assize try it therefore a Prohibition was denied 5. The Consistory Court of each Archbishop and every Bishop of every Diocess within this Realm is holden before the Bishops Chancellor in the Cathedral Church or before his Commissary in places of his Diocess far remote and distant from the Bishops Consistory so as the Chancellor cannot call them to the Consistory with any conveniency or without great travel and vexation for which reason such Commissary is called Commissarius Foraneus From these Consistories the Appeal is to the Archbishop of either Province respectively 6. By this word Consistory is commonly understood that place or Ecclesiastical Court of Justice held by the Bishops Chancellor or Commissary in his Cathedral Church or other convenient place of his Diocess for the hearing and determining of matters and Causes of Ecclesiastical cognizance happening within that Diocess But when this word refers to the Province of Canterbury then the chief and most ancient Consistory is the Arch-bishops high Court of Arches as the Court of Appeal from all other Inferiour Consistories within the said Province The same word sometimes refers to a Synod or Council of Ecclesiastical persons conven'd together or to a Cession or Assembly of Prelates but most usually to the Spiritual Court for the deciding of matters of Ecclesiastical cognizance The word Consistory Consistorium is supposed to be borrowed of the Italians or rather Lombards signifying as much as Praetorium or Tribunal being a word utriusque juris and frequently used for a Council-house of Ecclesiastical persons or the place of Justice in the Court Christian 7. The Consistories of Archbishops and Bishops are supposed to begin within this Realm in the time of William the Conquerour which seems very conjecturable from that Charter of his which Sir Ed. Coke in the fourth part of his Institutes mentions to have found Enrolled 2 R. 2. nu 5. Which Charter and Record of great Antiquity asserting not only the Episcopal Consistories but also the Ecclesiastical Jurisdiction it cannot be supposed but that it ought to be recited here in terminis per extensum viz. Willielmus gratia Dei Rex Anglorum Comitibus Vicecomitibus omnibus Francigenis quibus in Episcopatu Remigii terras habentibus salutem Sciatis vos omnes caeteri mei Fideles qui in Anglia manent quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum Praecepta usque ad mea tempora in Regno Anglorum fuerunt Communi Concilio Concilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Principum Regni mei Emendandas judicavi Propterea Mando Regia authoritate Praecipio ut nullus Episcopus vel Archidiaconus de Legibus Episcopalibus amplius in Hundretto Placita teneant nec causam quae ad Regimen animarum pertinet ad Judicium Secularium hominum adducant sed quicunque secundum Episcopales Leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundrettum sed secundum Canones Episcopales Leges Rectum Deo Episcopo suo faciat Si vero aliquis per superbiam elatus ad Justitiam Episcopalem venire non voluerit vocetur semel secundo tertio quod si nec sic ad emendationem venerit Excommunicetur si opus fuerit ad hoc vindicand ' fortitudo Justitia Regis vel Vicecomitis adhibeatur Ille autem qui vocatus ad Justitiam Episcopi venire noluit pro unaquaque vocatione legem Episcopalem emendabit hoc etiam Defendo mea authoritate interdico ne ullus Vicecom aut praepositus aut minister Regis nec aliquis Laicus homo de Legibus quae ad Episcopum pertinent se intromittat nec aliquis Laicus homo alium hominem sine Justitia Episcopi ad Judicium adducat Judicium vero in nullo loco portetur nisi in Episcopali Sede aut in illo loco quem ad hoc Episcopus constituerit 8. For the Confirmation of this Charter Sir Ed. Coke in the foresaid part of his Institutes refers us to the Register of
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
Bishop of Rome had assumed or tooken upon him to be the Spiritual Prince or Monarch of all the World he attempted also to give Laws to all Nations as one real Mark or Signal of his Monarchy but they well knowing Quod ubi non est condendi authoritas ibi non est parendi necessitas did not impose their Laws at first peremptorily on all Nations without distinction but offered them timide precario And therefore he caused certain Rules in the first place to be collected for the Government of the Clergy only which he called Decreta and not Leges vel Statuta These Decrees were published in An. 1150. which was during the Reign of King Stephen And therefore what the Lord Coke observes in the Preface to the Eighth part of his Reports Quod Rogerus Bacon frater ille perquam Eruditus in Libro De impedimentis Sapientiae dicit Rex quidem Stephanus allatis Legibus Italiae in Angliam Publico Edicto prohibuit ne in aliquo detinerentur may probably be conjectured to be meant and intended of those Decrees which were then newly compiled and published Yet these Decrees being received and observed by the Clergy of the Western Churches only for the Eastern Church never received any of these Rules or Canons Kelw. Rep. 7 H. 8. fo 184 the Bishop of Rome attempted also to draw the Laity by degrees into obedience to these Ordinances and to that purpose in the first place he propounds certain Rules or Ordinances for Abstinence or days of Fasting to be observed as well by the Laity as the Clergy which were upon the first Institution thereof called by the mild and gentle name of Regationes as Marsilius Pat. lib. Defensor Pacis par 2. cap. 23. hath observed and thence it seems the Week of Abstinence a little before the Feast of Pentecost was called the Rogation-week that time of Abstinence being appointed at the beginning by that Ordinance which was called Rogatio and not Praeceptum vel Statutum Now when the Laity out of their devotion had received and obeyed these Ordinances of Abstinence then the Bishop of Rome proceeds further De una praesumptione ad aliam transivit Romanus Pontifex as Marsil Pat. there says and made many Rescripts and Orders per Nomen Decretalium which were published in the year 1230. which was in the Fourteenth year of King H. 3. or thereabout Vid. Matth. Par. Hist mag 403. and these were made to bind all the Laity and Sovereign Princes as well as their Subjects in such things as concerned their Civil and Temporal Estates As that no Lay-man should have the Donation of an Ecclesiastical Benefice That no Lay-man should marry within certain Degrees out of the degrees limited by the Levitical Law That all Infants born before Marriage should be adjudged after Marriage Legitimate and capable of Temporal Inheritance That all Clerks should be exempt from the Secular power and others of the like nature But these Decretals being published they were not entirely and absolutely received and obeyed in any part of Christendom but only in the Pope's Temporal Territory which by the Canonists is called Patria obedientiae But on the other hand many of those Canons were utterly rejected and disobeyed in France and England and other Christian Realms which are called Patriae Consuetudinariae As the Canon which prohibited the Donation of Benefices per manum Laicam was ever disobeyed in England France the Kingdom of Naples and divers other Countries and Common-wealths And the Canon to make Infants Legitimate that were born before Marriage was specially rejected in England when in the Parliament held at Merton omnes Comites Barones una voce responderunt Nolumus Leges Angliae mutari quae hucusque usitatae sunt c. And the Canon which exempts Clerks from the Secular power was never fully observed in any part of Christendom Kelw. 7 H. 8. 181. b. which is one infallible Argument That these Ordinances had not their force by any Authority that the Court of Rome had to impose Laws on all Nations without their consent but by the approbation of the people which received and used them For by the same reason whereby they might reject one Canon they might reject all the other Vid. Bodin lib. 1. de Rep. cap. 8. where he saith That the Kings of France on the erection of all Universities there have declared in their Charters that they would receive the Profession of the Civil and Canons to use them at their discretion and not to be obliged by these Laws But as to those Canons which have been received accepted and used in any Christian Realm or Common-wealth they by such acceptation and usage have obtained the force of Laws in such particular Realm or State and are become part of the Ecclesiastical Laws of that Nation And so those which have been embraced allowed and used in England are made by such allowance and usage part of the Ecclesiastical Laws of England By which the interpretation dispensation or execution of these Canons being become Laws of England doth appertain sole to the King of England and his Magistrates within his Dominions and he and his Magistrates have the sole Jurisdiction in such cases and the Bishop of Rome hath nothing to do in the interpretation dispensation or execution of those Laws in England although they were first devised in the Court of Rome No more than the Chief Magistrate of Athens or Lacedemon might claim Jurisdiction in the Ancient City of Rome for that the Laws of the XII Tables were thither carried and imported from those Cities of Greece and no more than the Master of New-Colledge in Oxford shall have Command or Jurisdiction in Kings-Colledge of Cambridge for that the private Statutes whereby Kings-Colledge is governed were for the most part borrowed and taken out of the Foundation-Book of New-Colledge in Oxford And by the same reason the Emperour may claim Jurisdiction in Maritime causes within the Dominions of the King of England for that we have now for a long time received and admitted the Imperial Law for the determination of such Causes Vid. Cawdries Case Co. par 5. and Kelw. Rep. 184. a. Now when the Bishop of Rome perceived that many of his Canons were received and used by divers Nations of Christendom he under colour thereof claimed to have Ecclesiastical Jurisdiction in every Realm and State where these Canons were received and sent his Legates with several Commissions into divers Kingdoms to hear and determine Causes according to these Canons which Canons although neither the Pope nor his Ministers at the first venting and uttering thereof dared to call Laws Ne committerent crimen Laesae Majestatis in Principes as Marâ—il Pat. lib. Defensor pacis par 2. cap. 23. observes who also says That these Canons being made by the Pope Neque sunt humanae Leges neque divinae sed documenta quaedam Narrationes yet when he perceived that these Canons were received allowed
unless he be qualified for Plurality Or if a Dean be made a Bishop yea though a Dean or Parson in England be made a Bishop in Ireland as aforesaid his Benefice becomes void as was Resolved in Evans and Askwith's Case for that the Constitution or Council which makes it void is general and not limited to any place And so it was also Resolved 3 E. 3. Fitz. Trial and so adjudged 21 Jac. C. B. in the Case between Woodley and the Bishop of Exon and Manwaring 12. The case may so happen that albeit a man having a Benefice with Cure of Souls accept another and be Instituted and Inducted into the same yet his First Benefice shall not be void by Cession though the Benefices be incompatible though there be no Dispensation in the case and although himself be not otherwise qualified for Pluralities For it hath been Resolved That if a man having one Benefice accept another and be Instituted and Inducted into the Second and then read not his Articles that yet the First Benefice voids not by Cession because the Second is as not taken Notwithstanding it cannot be denied but that where a man having a Benefice with Cure of Souls above the value of Eight pounds per Ann. doth take another with Cure and is thereto Admitted Instituted and Inducted the First Benefice without Dispensation becomes void as in the Case of the King against George Lord Archbishop of Canterbury In which Case it was held That the Church was absolutely void in facto jure by taking of a Second Benefice and that by the express words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto jure quoad the Patron and all others Sed Q. whether void as to an Usurper for in some cases a Benefice may be void as to some persons and not void as to others As in the Case of Simony whereby as well as by Cession a Church becomes void yet in that case although it be void to all men quorum interest to the King and his Incumbent and all that claim under him and to the Parishioners to the Ordinary and to the like yet according to Sir Hen. Hobart Chief Justice it is not void to an Usurper for a man without Right cannot Present unto it as to a Church void nor the Ordinary so discharge himself if he receive the Clerk of an Usurper for he is none of them quorum interest Pasch 14 Jac. Rot. 1026. Case of Winchcombe against the Bishop of Winchester and Rich. Pulleston Hob. Rep. 13. If the Next Avoidance be granted to Three persons and after the Church become void and then Two of the Three Present the Third Grantee being a Clerk in this case the Presentation is good and the Bishop may not refuse him inasmuch as all Three were Joynt-tenants thereof by the Grant and only Two of them joyn in the Presentment for that the Third person cannot Present himself but if only one of these Three Grantees Present the Third the Bishop hath power to refuse him And if an Incumbent having the Advowson do Devise the Next Avoidance it seems it is good Trin. 13 Jac. B. R. Harris vers Austen Rol. Rep. 14. In Holland's Case it was Resolved That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure accept another with Cure the First was void but this was no Avoidance by the Common Law but by Constitution of the Pope of which the Patron might take Notice if he would and Present without Deprivation But because the Avoidance accrued by the Ecclesiastical Law no Lapse incurred without Notice as upon a Deprivation or Resignation so that the Church was void for the benefit of the Prtron not for his disadvantage But now if the First Benefice be of the value of Eight pounds per annum the Patron at his peril ought to Present for to an Avoidance by Parliament every one is party but if not of Eight pounds it is void by the Ecclesiastical Law of which he needs not take Notice 15. In a Quare Impedit The Defendant said A. was seized of the Advowson of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance and that J. S. died and made his Executor who Presented the Plantiff to the Church being void Upon Non concessit it was found That A. granted to J. S. durante vita ipsius J. S. primam proximam Advocationem and that he died before the Church became void Whether this was an absolute Grant of the Next Avoidance as is pretended was the Question And Resolved it was not but it is limited to him to Present to the Advowson if it becomes void during his life and not that otherwise it should go to his Executors and therefore it was Adjudged against the Defendant 16. The Incumbent of a Church purchased the Advowson thereof in Fee and devised that his Executor should Present after his decease and devised the Inheritance to another in Fee It was said the devise of the Next Avoidance was void because when his Will should take effect the Church was instantly void But the Court held the devise was good for the Law is so and it shall be good according to the intent of the party expressed in his will The Grant of the Next Avoidance during the Avoidance is void in Law Steephens and Clark's Case More 's Reports 17. In a Quare Impedit the Case was The Corporation of B. being seized of an Advowson granted the Next Avoidance to J. S. and afterward granted primam proximam Advocationem to the Earl of B. who granted it to the Plaintiff The Church became void J. S. Presented his Clerk who was Inducted and then the Church became void again It was Resolved that the Second Grant was void so as the Plaintiff had no Title for when he had granted primam proximam Advocationem to one he had not Authority to grant it after to another but if the First Grant had been lost so as it could not have been pleaded there perhaps the Second Grand had been good 18. In a Quare Impedit the Case was H. being Incumbent of a Church was Created a Bishop in Ireland and the Queen Presented the Defendant It was the Opinion of the Justices That this Creating of the Incumbent a Bishop in Ireland was a good cause of Avoidance and that the Queen should have it by her Prerogative But if the Queen doth not take the benefit of the First Avoidance but suffers a Stranger to Present and the Presentee dies she may not have Prerogative to Present to the Second Avoidance 19. The Next Avoidance of a Church was granted to A. and B. A. releases to B. and after the Church became void It was Adjudged in this Case That B. may Present and upon Disturbance have a Quare Impedit in his own Name
Fees wherewith Churches have been endowed otherwise in possessions of the Church newly purchased by Ecclesiastical persons 10 That such as Abjure the Realm shall be in peace so long as they be in the Church or in the Kings High-way 11 That Religious Houses shall not by compulsion be charged with Pensions resort or Purveyors 12 That a Clerk Excommunicate may be taken by the Kings Writ out of the Parish where he dwells 13 That the examination of the Ability of a Parson presented unto a Benefice of the the Church shall belong unto a Spiritual Judge 14 That the Elections to the Dignities of the Church shall be free without fear of any Temporal power 15 That a Clerk flying into the Church for Felony shall not be compelled to abjure the Realm 16 And lastly That the Priviledge of the Church being demanded in due form by the Ordinary shall not be denied unto the Appealor as to a Clerk confessing Felony before a Temporal Judge 2. In conformity to the premisses there were other Statutes after made in the time of King Ed. 3. whereby it was Enacted 1 That the goods of Spiritual persons should not without their own consents be taken by Purveyors for the King 2 That the King shall not collate or present to any vacant Church Prebend Chappel or other Benefice in anothers Right but within Three years next after the Avoidance 3 That the Temporalties of Archbishops Bishops c. shall not be seized into the Kings hands without a just cause and according to Law 4 That no waste shall be committed on the Temporalties of Bishops during Vacancies and that the Dean and Chapter may if they please take them to Farm 5 And lastly That the Lord Chancellor or Lord Treasurer may during such vacancies demise the Temporalties of Bishopricks to the Dean and Chapter for the Kings use 3. And as there are Articuli Cleri so there are also Articuli Religionis being in all thirty nine Agreed upon at a Convocation of the Church of England Ann. 1562. Ratified by Q. Elizabeth under the Great Seal of England Confirmed and Established by an Act of Parliament with his Majesties Royal Declaration prefixed thereunto Which Act of Parliament requires a Subscription by the Clergy to the said thirty nine Articles the same also being required by the Canons made by the Clergy of England at a Convocation held in London Ann. 1603. and ratified by King James The said Subscription referrs to three Articles 1. That the Kings Majestie under God is the only Supream Governour of the Realm and of all other his Highness Dominions and Countreys c. 2. That the Book of Common Prayer and of Ordaining of Bishops Preists and Deacons containeth nothing in it contrary to the Word of God c. 3. That he alloweth of the said thirty nine Articles of Religion and acknowledgeth them to be agreeable to the Word of God By the Statute of 13. Eliz. 12. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be prosecuted and proceeded against by the Censures of the Church And it is not sufficient that one subscribe to the Thirty Nine Articles of Religion with this Addition so far forth as the same are agreeable to the Word of God For it hath been resolved by Wray Cheif Justice and by all the Judges of England That such subscription is not according to the Statute of 13. Eliz. because the Subscription which the Statute requires must be absolute But this is no other then Conditional 4. The Circumspecte agatis is the Title of a Statute made in the 13 th year of Ed. 1. Ann. D. 1285. prescribing certain Cases to the Judges wherein the Kings Prohibition doth not lie As in Case the Church-yard be left unclosed or the Church it self uncovered the Ordinary may take Cognizance thereof and by that Statute no Prohibition lies in the Case Nor in case a Parson demands his Oblations or the due and accustomed Tythes of his Parishioners nor if one Parson sue another for Tythes great or small so as the fourth part of the Benefice be not demanded nor in case a Parson demand Mortuaries in places where they have been used and accustomed to be paid nor if the Prelate of a Church or a Patron demand of a Parson a Pension due to him nor in the Case of laying violent hands on a Clerk nor in Cases of Defamation where Money is not demanded nor in Case of Perjury In all which Cases the Ecclesiastical Judge hath Cognizance by the said Statute notwithstanding the Kings Prohibition So that the end of that Statute is to acquaint us with certain Cases wherein a Prohibition doth not lie And the Statute of 24 Ed. 1. shews in what Case a Consultation is to be granted And by the Statute of 50. Ed. 3. cap. 4. no Prohibition shall be allowed after a Consultation duely granted provided that the matter of the Libel be not enlarged or otherwise changed CHAP. XLIV Of several Writs at the Common Law pertinent to this Subject 1. What the Writ of Darrein Presentment imports in what case it lies and how it differs from a Quare Impedit 2. Assise de utrum what and why so called 3. Quare Impedit what for and against whom it lies 4. What a Ne admittas imports the use and end thereof 5. In what case the Writ Vi Laica removenda lies 6. What the Writ Indicavit imports and the use thereof 7. What the Writ Advocatione Decimarum signifies 8. Admittendo Clerico what and in what Case issuable 9. The Writ Beneficio primo Ecclesiastico habendo what 10. That Writ Cautione Admittenda and the effect thereof 11. The writ of Clerico infra Sacros ordines constituto non eligendo in Officium What the use or end thereof 12. The Writ Clerico capto per Statutum Mercatorum what 13. What the Writ of Clerico convicto commisso Goalae in defectu Ordinarii deliberando was 14. What the Writ of Annua Pensione was anciently 15. The Writ of Vicario deliberando occasione cujusdam Recognitionis what 16. Three Writs relating to Persons excommunicated 17. Assise of Darrein Presentment brought after a Quare Impedit in the same cause abates 18. Difference of Pleas by an Incumbent in respect of his being in by the Presentment of a stranger and in respect of his being in by the Presentment of the Plaintiff himself 19. Notwithstanding a recovery upon a Quare Impedit the Incumbent continues Incumbent de facto until Presentation by the Recoverer 20. Of what thing a Q. Imp. lies and who shall have it 21. Who may have a Quare Impedit and of what things 22. How and for whom the Writ of Right of Advowson lies 23. What the Writ de jure patronatus and how the Law proceeds thereon 24. The Writ of Spoliation what and where it lies 25. The Writ
the best Analogy with the truth comparing one Antiquary with another touching that Subject This Radulphus de Diceto was Dean of London a very Ancient Historian he wrote the History of England from A. 1147. to 1193. in a Book Entituled Imagines Historiarum and in the Prologue to his Chronicle Abbreviations says That Augustine who by Pope Gregory was sent into England An. 600. after he had Converted Ethelbert King of Kent to the Christian Faith went in the year 602. to Arles where he was Consecrated Episcopus Anglorum by Etherius Archbishop of that place and being returned into Britain sent Laurentius the Presbyter and Petrus the Monk to Pope Gregory giving him an account of Britains being converted to the Faith and himself made Bishop thereof Whereupon the said Gregory sent them back into England and with them several Divines to preach the Gospel in this Isle among which the Chief were Mellitus Justus Paulinus and Ruffinianus by whom he also sent the Pall to Augustine and at the same time wrote him in what manner he should Constitute Bishops in England and that in haec verba viz. Per locos singulos 12 Episcopos ordines qui tuae subjaceant ditioni◠quatenus Lundoniensis Civitatis Episcopus semper in posterum à Synodo propria debeat Consecrari c. Ad Eboricum vero Civitatem te volumus Episcopum mittere quem ipse judicaveris Ordinare Ita duntaxat ut si eadem Civitas cum finitimis locis Verhum Dei receperit ipse quoque 12. Episcopos ordinet Metropolitani honore fruatur Quem tamen tuae Fraternitatis volumus dispositioni subjacere Post obitum vero tuum ita Episcopus quos ordinaverit praesit ut Lundoniensis Episcopi nullo modo ditioni subjaceat Sit vero inter Lundoni Eboricae Civitatis Episcopos in posterum honoris ista Distinctio ut ipse prior habeatur qui prius fuerit Ordinatus Tua vero Fraternitas Episcopos quos ordinaveris qui vel per Episcopum Eboracae fuerint Ordinati Sacerdotes etiam totius Britanniae Subjectos habeat After the receipt of these Orders from Pope Gregory the Bishops of Britain were conven'd to a Conference by Augustine he having first Ordained the said Laurentius as his Suffragan the said Mellitus Bishop of London and the said Justus Bishop of Rochester About which time King Ethelbert built St. Pauls Church London or re-edified the same About this time also it was viz. An. 608. that Pope Boniface obtain'd of the Emperour Phocas That the Church of Rome should be the Head of all other Churches That of Constantinople having till then assumed that Title the which was after Decreed sub Anathemate in a Council of 62 Bishops Afterwards the the said Laurentius Mellitus and Justus became Archbishops of Canterbury successively viz. Laurentius in An. 615. Mellitus in An. 622. and Justus in An. 626. according to the computation of the said Radulphus by the last of which Paulinus was Ordained Archbishop of York and to which Justus Pope Boniface wrote in haec verba viz. Authoritati beati Petri praecipientes firmamus ut in Dorobernia Civitate semper in posterum Metropolitanus totius Britanniae locus habeatur omnesque Provinciae Regni Anglorum praefati loci Metropolitanae Ecclesiae subjiciantur Again the precedency of the See of Canterbury is recorded by the said Rodolphus in these words viz. Sicut Cantia subjicitur Romae quod ex ea fidem accepit ita Eboricum subjicitur Cantuariae quae eo Praedicatores misit Sicut igitur sedes Cantuariae prima fuit in fide prima sit in honore After Justus Honorius was made Archbishop of Canterbury whom Paulinus consecrated at Lincoln to whom Honorius Pope wrote in haec verba viz. Cum Dorobernensis Antistes vel Eboracensis de hac vita transierit is qui superest habeat potestatem alterum ordinandi Bed lib. 2. cap. 16. Si de Consecrationibus Archiepiscoporum Cantuar. contrarium aliquid inveneris in Authentico Libro quam in hoc volumine reperiatur adquiescam in omnibus And in the year 632. Pope Honorius wrote unto Honorius Archbishop of Canterbury in these words viz. Tuae Jurisdictioni subjici praecipimus omnes Angliae Ecclesias Regiones ut in Civitate Dorobernia Metropolitanus Locus honor Archiepiscopatus Caput omnium Ecclesiarum Anglorum semper in posterum servetur That the Archiepiscopal Seat at York is likewise of very great Antiquity is evident by what is forementioned touching Paulinus Archbishop thereof above one Thousand years since Our Learned Antiquary tells us Ex Patriis Scriptoribus That York was adorned with an Episcopal Seat by Constantius But if so or if that be the truth which is recorded of Paulinus aforesaid how then could Faganus sent hither by Pope Eleut herius to King Lucius to plant the Christian Religion be as reported the first Archbishop thereof or how could King Lucius place there one Theodosius which yet is also affirmed Or how could Sampson under the same King be Bishop of York as appears by Godwin who yet suspects it in regard that at the first entertainment of Christianity among us nor Hebrew nor Greek Names of the New Testament were so rise among the Britains and indeed this Sampson is more generally reserved to some Ages after till King Arthurs time Thus the Original of things as aforesaid seems full of obscurity and uncertainty yet it is most probable that the first Bishop of York was not till Constantines days and we shall find this Bishop at Arles in the Council there held about the year 314. whither as himself writes in his Epistle to Chrestus Bishop of Syracuse he summoned to hear the Cause of the Donatists many Bishops from divers places In the last Edition of this Council published by Jacobus Sirmondus at Paris among other Subscriptions thereunto you have out of Britain these following viz. Eborius Episcopus de Civitate Eboracensi Provincia Britannia Restitutus Episcopus de Civitate Londinensi Provincia superscripta Adelphus Episcopus de Civitate Colonia Londinensium exinde Sacerdos Presbyter Arminius Diaconus From which Council at Arles it may be observed 1 That York was no Archbishoprick at that time as neithet indeed was Rome it self 2 That Eborius Bishop of York at this Council takes place of Restitutus Bishop of London where as some suppose the Primacy alwaies remained till translated to Canterbury Whether Constantine the Great who is supposed to have adorned York with an Episcopal Seat as aforesaid were Born there and not elsewhere as some conceive is not easily at least not expresly proved out of the Ancients says a Learned Antiquary of Late times yet says he That Authority seems to be drawn from them which the Embassadours of England made use of and that in the hearing of the Learned World then both at the Council of Constance An. 1414. as also at that of Basil An. 1431. At the Council of
Consistory Among the many Learned Ecclesiedicts who have supplied that Ecclesiastical place William Lindwood who finished his industrious and useful work of the Provincial Constitutions about the year 1433. in the time of K. Henry the Sixth seems to be of the highest Renown his Education was in the University of Cambridge first Scholar of Gonvil then Fellow of Pembrook-hall his younger years he employed in the study of the Imperial and Canon Laws afterwards became Keeper of the Privy Seal unto King Henry the Fifth by whom he was honoured with an Embassie to the Crowns of Spain and Portugal After the Kings death he reassum'd his Officials place of Canterbury and then collected the Constitutions of the Fourteen later Archbishops of Canterbury from Stephen Langton unto Henry Chichley unto whom he dedicated that highly to be esteemed Work his Gloss thereon being in it self as a Canonical Magazine or the Key which opens the Magazine of the whole Canon Law It was printed at Paris An. 1505. at the cost and charges of William Bretton Merchant of London revised by the care of Wolfangus Hippolitus and Prefaced unto by Jodocus Badius This Famous Lindwood was afterwards made Bishop of St. Davids By the Grant of William the Conqueror the Bishops originally had an entire Jurisdiction to judge all Causes relating to Religion for before that time the Sheriff and Bishop kept their Court together He granted also to the Clergy Tithes of Calves Colts Lambs Woods Mills c. So that before the Conquest there were no such Courts in England as we now call Courts Ecclesiastical or Spiritual for Anciently the Bishops sate in Judgment together with the Secular Judges and Sheriffs on the same Tribunal specially about Easter and Michalmass which appears by Mr. Selden in his Notes on Eadmerus pag. 167. as also by the Laws of King Aethelstane Debent Episcopi cum Seculi Judicibus interesse Judiciis ne permittant si possint ut illinc aliqua pravitatum germina pullulaverint Sacerdotibus pertinet in sua Diocoesi ut ad rectum sedulo quemcunque juvent nec patiantur si possint ut Christianus aliquis alii noceat c. Chron. Jo. Bromton de Leg. Aethelst Reg. And in the Preamble to the Laws of that King you will find these words viz. Debet etiam Episcopus sedulo pacem concordiam operari cum Seculi Judicibus Yea long after the Conquest in the Reign of H. 2. An. 1164. by his Laws made at Clarendon the Bishops might interest themselves with the Kings Secular Judges where the matter in Judgment extended not to diminution of Members or were Capital An. 1164. Congregati sunt Praesules Proceres Anglicani regni apud Clarendoniam Rex igitur Henricus c. Then it follows in Lege undecima viz. Archiepiscopi Episcopi c. sicut Barones caeteri debent interesse Judiciis Curiae Regis cum Baronibus usque perveniatur in Judicio ad diminutionem Membrorum vel ad mortem Notwithstanding at the same time the Bishops Ecclesiastical Courts as also the Archdeacons Courts were established in this Kingdom and further ratified and confirmed by these very Laws of King H. 2. made at Clarendon as appears by the Tenth Law and that immediately foregoing the Premisses in haec verba viz. Qui de Civitate vel Castello vel Burgo vel dominico manerio Domini Regis fuerit si ab Archidiacono vel Episcopo de aliquo delicto Citatus fuerit unde debeat eis Respondere ad Citationes eorum noluerit satisfacere bene licet eum sub Interdicto ponere sed non debet c. exinde poterit Episcopus ipsum Accusatum Ecclesiastica Justitia coercere Chron. Gervas de Temp. H. 2. In those daies there was no occasion for that just Complaint which a Learned Pen as a Modern Author observes makes viz. That Courts which should distribute Peace do themselves practice Duells whilst it is counted the part of a Resolute Judge to enlarge the Priviledge of his Court Lord Bacon in his Advanc of Learn p. 463. Aphor. 96. It was with more moderation expressed by him who said It was sad when Courts that are Judges become Plaintiffs and Defendants touching the Bounds of their Jurisdiction In the first Parliament of King Edward the Sixth's Reign it was Enacted That all Process out of the Ecclesiastical Courts should from thenceforth be issued in the Kings Name only and under the Kings Seal of Arms contrary to the usage of former Times But this Statute being Repealed by Queen Mary and not Revived by Queen Elizabeth the Bishops and their Chancellors Commissaries and Officials have ever since exercised all manner of Ecclesiastical Jurisdiction in their own Names and under the distinct Seals of their several Offices respectively Also by the Statute of 25 H. 8. c. 19. it being Enacted That all former Canons and Constitutions not contrary to the Word of God the Kings Prerogative or the Laws and Statutes of this Realm should remain in force until they were review'd by Thirty two Commissioners to be appointed by the King and that Review being never made in that Kings time nor any thing done therein by King Ed. 6. though he had also an Act of Parliament to the same effect the said Ancient Canons and Constitutions remain'd in force as before they were whereby all Causes Testamentary Matrimonial Tithes Incontinency Notorious Crimes of Publick Scandal Wilful absence from Divine Service Irreverence and other Misdemeanours in or relating to the Church c. not punishable by the Temporal Laws of this Realm were still reserved unto the Ecclesiastical Courts as a standing Rule whereby they were to proceed and regulate the Exercise of their Jurisdiction Vid. Heyl. ubi supr p. 2 3. Touching the Ecclesiastical Jurisdiction and what Matters and Causes should be cognizable in the Ecclesiastical Courts of Normandy in the Reign of King Richard the First upon occasion of a Contest inter Ecclesiam ROTHOMAGENSEM WILLIELMUM Filium RADULFI Steward of Normandy it was nigh Five hundred years since finally Accorded Published inter alia Declared by all the Clergy That all Perjuries and Breach of Faith except in case of National Leagues all Controversies relating to Dowries and Donations propter Nuptias quoad Mobilia should be heard and determined in the Ecclesiastical Court it was then also so many hundred years since further Resolved in haec verba viz. Quod distributio eorum quae in Testamento relinquuntur auctoritate Ecclesiae fiet nec Decima pars ut olim subtrahetur It was likewise at the same time and so long since further Resolved That Si quis subitanea morte vel quolibet alio Fortuito Casu praeoccupatus fuerit ut de rebus suis disponere non possit Distributio Bonorum ejus Ecclesiastica auctoritate fiet Radulph de Diceto Hist de Temp. Rich. 1. Regis Of all the Churches in Great Britain that of Saint Pauls London is of the largest structure
as Deacons and Curates in places appointed 2. Under this Name or Appellation of Bishops are contained Bishops Primates Metropolitans Patriarchs and Summus Pontifex Dist 21. c. 1. And the Presbyters also C. Legimus § 1. Dist 93. Spec. de Instr Edit Sect. 14. vers de Episcopo and for such commonly used and taken in the New Testament l. 14. c. de Episc Cler. In some Acts of Parliament we find the Bishop to be called Ordinary and so taken at the Common Law as having Ordinary Jurisdiction in Causes Ecclesiastical albeit in the Civil Law whence that word Ordinarius is taken it signifies any Judge authorized to take Cognizance of Causes proprio suo jure as he is a Magistrate and not by way of Deputation or Delegation The word Ordinary doth chiefly take place in a Bishop and other Superiours who alone are Universal in their Jurisdictions yet under this word are comprized also other Ordinaries viz. such as to whom Ordinary Jurisdiction doth of right belong whether by Priviledge or by Custome Lindw de Constit c. Exterior ver Ordinarii The Pallium Episcopale or Bishops Pall mentioned as Sr. Ed. Coke observes in some Statutes and many Records and Histories is a Hood of white Wool to be worn as Doctors Hoods upon the Shouldiers with Four Crosses woven into it c. for the Form and Colours whereof vid. Antiq. Brit. Eccles fo 1. This Pallium Episcopale is the Arms belonging to the See of Canterbury vid. Cassan de glo mun p. 4. fo 103. a. 26. Consid ubi multa Legas de Pallio Henry Dean the 65th Archbishop of Canterbury An. 1502. had Pallium Archiepiscopatus Insigne sent him from Pope Alexander 6. by his Secretary Adrian which by the Bishop of Lichfield and Coventry Authorized thereto by the Pope was presented him at Lambeth in these words viz. Ad honorem Dei Omnipotentis c. Tibi tradimus Pallium de Corpore beati Petri sumptum plenitudinem videlicet Pontificalis Officii c. whereupon he swore Canonical obedience to the Apostolical See of Rome 3. The Kings of England were Anciently the Founders of all the Archbishopricks and Bishopricks in this Realm and also in Wales the Bishops thereof were Originally of the Foundation of the Princes of Wales Bishops in England originally were Donative per traditionem Baculi Pastoralis Annuli until King John by his Charter granted that they should be Eligible Chart. 25. Jan. An. Reg. 17. De Commuâ—i Consensu Baronum after which came in the Congé d'Eslire And at this day the Bishopricks in Ireland are Donative Rolls 342. The Patronage of all Bishopricks is in the King so as that he gives leave to the Chapters to chuse them In Ancient times the King gave the Bishopricks and then afterwards gave leave to the Chapters to chuse them as aforesaid The learned Serjeant Roll in that part of his Abridgment touching this Subject makes mention of 1 E. 1. Rot. Clauso Memb. 11. in dorso where there is this Protestation made by the King Cum Ecclesia Cathedralis viduatur de jure debeat soleat de Consuetudine provideri per Electionem Canonicam ab ejusmodi potissimum Celebrandam Collegiis Capitulis personis ad quos jus pertinet petita tamen prius ab Illustri Rege Angliae super hoc Licentia obtenta demum Celebrata Electione persona Electa eidem Regi habeat Praesentari ut idem Rex contra personam ipsam possit proponere si quid rationabile habeat contra eum And the Protestation goes further That in case the Pope makes Provision without such Canonical Election the King shall not be obliged to give him his Temporalties yet of grace for the time present he give the Temporalties to the Abbot Elect of Canterbury Thus the Election of Bishops by Deans and Chapters began by the grant of the King but the Grant was to Elect after License first had and obtained as appears by the Stat. of 25 Ed. 3. Stat. de Provisoribus Rastal 325 d. And King John was the first that granted it by his Charter dated 15 Jan. An. 16. William Rufus K. after the Archbishop of Canterbury's death kept the See without an Archbishop for the space of four years and then assum'd divers other Ecclesiastical Promotions into his own hands that were then vacant putting to Sale divers Rights and Revenues of the Church But King H. 1. made a Law against Reservations of Ecclesiastical Possessions upon Vacancies In the time of Edward the Confessor the Prelates used to receive Investitute from the King by giving them the Pastoral Staff and a Ring And so it was used in the time of H. 1. but Suffragans were invested only by the Ring without the Staff for that they are not Bishops so fully and compleatly as the other 4. To the Creation of Bishops are requisite Election Confirmation Consecration and Investiture Upon the vavancy of a See the King grants his License under his Great Seal to the Dean and Chapter of such vacant Cathedral to proceed to an Election of such a person as by his Letters Missive he shall nominate and appoint to succeed in such vacant Archbishoprick or Bishoprick which Election must be within twenty days next after their receiving such License or Letters Missive upon failure whereof they run the danger of a Praemunire Or if above twelve days after their receipt thereof the Election be deferr'd the King may by his Letters Patent nominate or present to such vacant Bishoprick to the Archbishop or Metropolitan of that Province wherein such See is void or unto one Archbishop and two other Bishops or to four such Bishops as his Majesty shall think fit in case upon such Nomination or Presentment by the King the default of Election by the Dean and Chapter be to the Office and Dignity of a Bishop Otherwise if they Elect according to his Majesties pleasure in his Letters Missive the Election is good and upon their Certificate thereof unto his Majesty under their Common Seal the person so Elected is reputed and called Lord Bishop Elect yet is he not thereby compleat Bishop to all intents and purposes for as yet he hath not Potestationem Jurisdictionis neque Ordinis nor can have the same untill his Confirmation and Consecration for which Reason it is that if after such Election and before Consecration a Writ of Right be brought in the Court of a Mannor belonging to such Bishoprick it is not directed Episcopo but Ballivis of the Bishop Elect. The order of making a Bishop consists chiefly in these Eight things viz. 1. Nomination 2. Congé d'Eslire 3. Election 4. Royal Assent 5. Confirmation 6. Creation 7. Consecration 8. Installation Vid. Grendon's Case in Plowd Trin. 17 Jac. B. R. Sobrean Teige vers Kevan Roll. Rep. par 2. The Creation of a Bishop is in this Solemn
vacancy of a Bishoprick the Dean and Chapter by virtue of his Majesties License under the Great Seal of England hath proceeded to the Election of a new Bishop in pursuance of and according to his Majesties Letters Missive on that behalf and Certificate thereof made unto the Kings Majesty under their Common Seal then follows the Confirmation Consecration and Investiture by the Archbishop or Metropolitan of that Province wherein such Bishoprick was void the said Election having upon such elected Bishops Oath of Fealty to the Kings Majesty been first signified to the Archbishop by the King under his Great Seal whereby the said Archbishop is required to Confirm the said Election and to Consecrate and Invest the person Elected And now he is compleat Bishop as well unto Temporalties as Spiritualties yet after his Confirmation and before his Consecration the King may if he please ex gratia grant him the Temporalties But after his Consecration Investiture and Instalment he is qualified to sue for his Temporalties out of the Kings hands by the Writ de Restitutione Temporalium And yet it seems the Temporalties are not de jure to be delivered to him until the Metropolitan hath certified the time of his Consecration although the Freehold thereof be in him by his very Consecration But if during the Vacation of Archbishopricks or Bishopricks and while their Temporalties are in the Kings hands the Freehold-Tenants of Archbishops or Bishops happen to be attainted of Felony the King by his Prerogative hath the Escheats of such Freeholders-Lands to dispose thereof at his pleasure saving to such Prelates the Service that is thereto due and accustomed Before the Conquest the Principality of Wales was held of the King of England and by the Rebellion and forfeiture of the Prince the Principality came to the King of England whereby the Bishopricks were annexed to the Crown and the King grants them their Temporalties 10 H. 4. 6. 7. The manner of making a Bishop is fully described in Evans and Kiffin's Case against Askwith wherein it was agreed That when a Bishop dies or is Translated the Dean and Chapter certifie the King thereof in Chancery and pray leave of the King to make Election Then the King gives his Congé d'Esâ—ire whereupon they make their Election and first certifie the same to the party Elect and have his consent Then they certifie it to the King in Chanceâ—y also they certifie it to the Archbishop and then the King by his Letters Patents gives his Royal Assent and commands the Archbishop to Confirm and Consecrate him and to do all other things necessary thereunto whereupon the Archbishop examines the Election and the Ability of the party and thereupon confirms the Election and after Consecrates him according to the usage upon a New Creation And upon a Translation all the said Ceremonies are observed saving the Consecration which is not in that case requisite for that he was Consecrated before 8. Bishopricks were Donatives by the King till the time of W. Rufus and so until the time of King John Read for that the History of Eadmerus Vid. Case Evans vers Ascouth in â—in Caâ— Noy 's Rep. It hath been generally held That before the Conquest and after till the time of King John Bishops were Invested by the King per Baculum Annulum but King John by his Charter granted That there should be a Canonical Election with Three Restrictions 1. That leave be first asked of the King 2. His Assent afterwards 3. That he shall have the Temporalties during the Vacation of the Bishoprick whereof mention is made in the Stat. of 25 Ed. 3. de Provisoribus and which is confirmed by the Stat. of 13 R. 2. c. 2. Also the Law in general is positive therein That in the making of all Bishops it shall be by Election and the Kings Assent and by the 25 H. 8. the Statute for Consecration of Bishops makes it more certain And if the Pope after the said Charter did use to make any Translation upon a Postulation without Election and Assent of the King it was but an Usurpation and contrary to the Law and restrained by 16 R. 2. and 9 H. 4. 8. And after the 25 H. 8. it was never used to have a Bishop by Postulation or any Translation of him but by Election as the said Statute prescribes And the form of making a Bishop at this day is after the same manner as aforesaid and according to the said Statute 9. The Interest and Authority which a Bishop Elect hath is That he is Episcopus Nominis non Ordinis neque Jurisdictionis But by his Confirmation he hath Potestatem Jurisdictionis as to Excommunicate and Certifie the same 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease But after Election and Confirmation he hath Potestatem Ordinationis for then he may Consecrate confer Orders c. For a Bishop hath Three Powers 1. Ordinis which he hath by Consecration whereby he may take the Resignation of a Church confer Orders consecrate Churches And this doth not appertain to him quatenus Bishop of this or that place but is universal over the whole World So the Archbishop of Spalato when he was here conferr'd Orders 2. Jurisdictionis which is not Universal but limited to a place and confin'd to his See This power he hath upon his Confirmation 3. Administratio rei familiaris as the Government of his Revenue and this also he hath upon his Confirmation The Bishop acts either by his Episcopal Order or by his Episcopal Jurisdiction By the former he Ordains Deacons and Priests Dedicates or Consecrates Churches Chappels and Churchyards administers Confirmation c. By the latter he acts as an Ecclesiastical Judge in matters Spiritual by his Power either Ordinary or Delegated 10. An. 1430. Temp. Reg. H. 6. Hen. Chicheley Archiepisc Cant. in Synodo Constitutum est Ne quis Jurisdictionem Ecclesiasticam exerceret nisi Juris Civilis aut Canonici gradum aliquem ab Oxoniâ—nsi vel Cantabrigiensi Academia accepisset Ant. Brit. fo 284. nu 40. The power of the Bishop and Archbishop is derived from the Crown as was held in Walkers Case against Lamb where it was also held That the Grant of a Commissary or Official to one was good notwithstanding he were a Lay man and not a Doctor of Law but only a Batchelour of Law for the Court then said That the Jurisdiction of the Bishop and Archdeacon is derived from the Crown by usage and prescription and that in it self as it is coercive to punish Crimes or to determine Matrimonial Causes and Probate of Testaments and granting of Administrations being Civil Causes are derived from the Crown and not incident de mero jure to the Bishop which appears by Henslows Case par 9. Cawdry's Case par 5. 1 Ed. 6. c. 2. the Stat. of 37 H. 8. and divers other Authorities and the Statute of 37 H. 8. c.
next in precedency hath been a Count Palatine about six or seven hundred years and hath at this day the Earldom of Sadberg long since annexed to this Bishoprick by the King Note a President hath been shewed at Common Law That the Bishop of Durham imprisoned one for a lay-Lay-Cause and the Archbishop of York as his Sovereign cited him to appear before him to answer for that Imprisonment and the Archbishop was fined four thousand Marks Cro. par 1. The Bishop of Winchester was anciently reputed Earl of Southampton All the other Bishops take place according to the Seniority of their Consecration unless any Bishop happen to be made Lord Chancellor Treasurer Privy Seal or Secretary of State which anciently was very usual All the Bishops of England are Barons and Peers of the Realm have place in the Upper house of Parliament as also in the Upper house of Convocation The Bishopricks were erected into Baronies by William the Conqueror at his coming into England And as a special remark of Honour Three Kings viz. of England Scotland and South-Wales in the year 1200. did contribute their Royal shoulders for the conveyance of the deceased Corps of Hugh Bishop of Lincoln to his Grave And no wonder when Princes themselves and such as were of the Blood Royal were anciently Bishops in this Kingdom they have been not only of the best Nobility but divers of the Sons and Brothers of several English Kings since the Conquest and before have entred into Holy Orders and became Ecclesiasticks as at this day is practicable in the most of all other Monarchies throughout the whole Christian World Ethelwolph Son and Successor to Egbert first Sole King of England was in Holy Orders and Bishop of Winchester at his Fathers death Odo Brother to William the Conqueror was Bishop of Bayeux in Normandy Henry de Blois Brother to King Stephen was Bishop of Winchester Geofry Plantagenet Son to King Henry the Second was Bishop of Lincoln And Henry de Beauford Brother to King Henry the Fourth was Bishop also of Winchester 20. The Statute of 17 Car. 1. cap. 27. for disinabling persons in Holy Orders to exercise Temporal Jurisdiction or Authority being Repealed as aforesaid by the Statute of 13 Car. 2. cap. 2. they are thereby restored to the exercise of Temporal Jurisdiction as formerly which indeed is no more than what they ever Anciently exercised in this Kingdom For Ex Clero Rex semper sibi eligebat Primos à Consiliis Primos ad Officia Regni obeunda Primi igitur sedebant in omnibus Regni Comitiis Tribunalibus Episcopi in Regali quidem Palatio cum Regni Magnatibus in Comitatu una cum Comite in Turno cum Vice-comite in Hundredo cum Domino Hundredi sic ut in promovenda Justitia usquequaque gladii gladium adjuvaret nihil inconsulto Sacerdote vel Episcopo ageretur This Union of Persons Authority and Courts of Judicature Ecclesiastical and Civil as Mr. Selden proves continued above Four thousand years till Pope Nicholas the First about the Eighth Century to exclude the Emperour from medling in the Ecclesiastical Government began to exclude the Clergy from medling with the Civil And for the space of four or five hundred years during the Reign of the Saxon Kings in England the Ecclesiastical and Secular Magistrates sate joyntly together determining Ecclesiastical Affairs in the Morning and Secular or Civil Affairs in the Afternoon so that in those days as there was no clashing of Jurisdictions so no complaint touching Prohibitions but an unanimous harmony in a kind of Joynt-Jurisdiction in reference to all Ecclesiastical and Civil Affairs until William the Conqueror did put a distinction between Church and State in a more divided way than formerly had been practiced Also the excellent Laws made by King Ina King Athelstan King Edmund and St. Edward the Confessor from whom we have our Common Laws and our Priviledges mentioned in Magna Charta were all made by the perswasions and advice of Archbishops and Bishops named in our Histories 21. That which during the Reign of King Edw. 6. made the greatest alteration and threatned most danger to the State Ecclesiastical was the Act entituled An Act for Election and what Seals and Styles shall be used by Spiritual persons c. In which it was ordained That Bishops should be made by the Kings Letters Patents and not by the Election of the Deans and Chapters That all their Processes and Writings should be made in the Kings Name only with the Bishop's Teste added to it and sealed with no other Seal than the Kings or such as should be Authorized and Appointed by him In the compounding of which Act there was more danger as Dr. Heylin observes couched than at first appeared For by the last Branch thereof it was plain and evident says he that the intent of the Contrivers was by degrees to weaken the Authority of the Episcopal Order by forcing them from their strong hold of Divine Institution and making them no other than the Kings Ministers only or as it were his Ecclesiastical Sheriffs to execute his Will and disperse his Mandates And of this Act such use was made though possibly beyond the true intention of it that as the said Dr. Heylin observes the Bishops of those Times were not in a Capacity of conferring Orders but as they were thereunto impowred by special License The Tenour whereof if Sanders be to be believed was in these words following viz. The King to such a Bishop Greeting Whereas all and all manner of Jurisdiction as well Ecclesiastical as Civil flows from the King as from the Supream Head of all the Body c. We therefore give and grant to thee full power and License to continue during our good pleasure for holding Ordination within thy Diocess of N. and for promoting fit persons unto Holy Orders even to that of the Priesthood Which being looked on by Queen Mary not only as a dangerous diminution of the Episcopal Power but as an odious Innovation in the Church of Christ she caused this Act to be Repealed in the first year of her Reign leaving the Bishops to depend on their former claim and to act all things which belonged to their Jurisdiction in their own Names and under their own Seals as in former times In which estate they have continued without any Legal Interruption from that time to this But says the same Author in the First Branch there was somewhat more than what appeared at the first sight For though it seemed to aim at nothing but that the Bishops should depend wholly on the King for their preferment to those great and eminent places yet the true drift of the Design was to make Deans and Chapters useless for the time to come and thereby to prepare them for a Dissolution For had nothing else been intended in it but that the King should have the sole Nomination of all the Bishops in his Kingdoms it had
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
Otherwise it is where the Archdearonry is only by Contract or Covenant made between the Bishop and the Archdeacon for in that case if the Bishop so intermeddle within the Jurisdiction of such Archdeacon or hold Plea within the same he can have but an Action of Covenant against the Bishop and no Prohibition lies in that case The Cognizance which the Archdeacon hath is of matters meerly Ecclesiastical to which end he or his Commissary may hold his Court where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry and from him the Appeal is to the Diocesan 3. An Archdeaconryship being only matter of Function and as supposed not properly Local nor any Indenture made of it it hath been some question heretofore whether a Quare Impedit doth lie of it or not But it was held in the Affirmative for that an Archdeacon hath Locum in choro The power of an Archdeacon was derived from the Bishop and to him he is subordinate To which purpose the opinion of the Court in Hutton's Case upon a Quare Impedit was That if a Suit be before an Archdeacon whereof by the Statute of 23 H. 8. the Ordinary may license the Suit to a higher Court that the Archdeacon cannot in such case balk his Ordinary and send the Cause immediately into the Arches for he hath no power to give a Court but to remit his own Court and to leave it to the next for since his power was derived from the Bishop to whom he is subordinate he must yield it to him of whom he received it and it was said in that Case that so it had been ruled heretofore 4. If after the Clerk hath been presented by the Patron and Admitted and Instituted by the Bishop the Archdeacon shall refuse to Induct him into the Benefice an Action upon the Case lieth for the Clerk against the Archdeacon He hath power to keep a Court which is called the Court of the Archdeacon or his Commissary And this Court is to be holden where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry And from him the Appeal is to the Diocesan 5. Although by the Canon Law if one having a Benefice with Cure of Souls accepts an Archdeaconry the Archdeaconry is void yet it is conceived that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reason of a Proviso there viz. Provided that no Deanary Archdeaconry c. be taken or comprehended under the Name of a Benefice having Cure of Souls in any Article above-specified and to this Opinion did Wray and the other Justices incline in Vnderhill's Case And indeed an Archdeaconry by the express Letter of that Statute is exempt from being comprehended under the name of a Benefice with Cure for the words are That no Deanary Archdeaconry Chancellorship Treasurership Chantership or Prebend in any Cathedral or Collegiate Church nor Parsonage that hath a Vicar endowed nor any Benefice perpetually Appropriate shall be taken or comprehended under the name of a Benefice having Cure of Souls 6. By the Ecclesiastical Constitutions and Canons of the Church of England no Archdeacon nor indeed any other Ecclesiastical Judge may suffer any general Process of Quorum Nomina to issue out of his Court Except the Names of those to be cited be first expresly entered by the Register or his Deputy under such Process and both Process and Names first subscribed by such Archdeacon or other Ecclesiastical Judge or his Deputy with his Seal thereto affixed And in places where both the Bishop and Archdeacon do by Prescription or Composition visit at several times in one and the same year the Archdeacon or his Official shall within one month next after the Visitation ended that year and the Presentments received certifie under his hand and Seal to the Bishop or his Chancellor the Names and Crimes of all such as are presented in his said Visitation to the end the Chancellor may not Convent the same person for the same Crime for which he is presented to the Archdeacon which course the Chancellor is in like manner to observe in reference to the Archdeacon after the Bishops Visitation ended The which was Ordained to prevent the Prosecution of the same party for the same fault in divers Ecclesiastical Courts And in cases of remitting Causes from the Inferiour Judge the Archdeacon cannot remit the Cause to the Archbishop but he must remit it to his Bishop and he to the Archbishop Trin. 11 Jac. 7. The Archdeacon within the Jurisdiction of his Archdeaconry may by vertue of his Office have his Visitation if he so please or need shall require once every year but of necessity he is to have his Triennial Visitation Lindw de Offic. Archid. c. 1. verb. Visitatione gloss But whether of Common right and by the Jus Commune the Archdeacon may Visit within the Jurisdiction of his Archdeaconry is some question yet resolved by distinguishing whether the Visitation be made per modum Serutationis simplicis by the Archdeacon as the Bishops Vicar and so he may Visit of Common Right but if in such Enquiries he take upon him nomine suo proprio to correct Faults other than such small ones as wherein Custome may warrant him in such case it is held that he hath not power of Visitation de jure communi Lindw ibid. And in all such things as belong to his Visitation he hath Jurisdiction and by Custome over Lay-persons as well as over the Clergy It seems therefore he may do all such things as without the doing and dispatch whereof his Jurisdiction could not clearly appear L. cui Jurisdictio ff de Jurisd om Jud. and therefore wherever he may take cognizance of a matter there he may also give sentence and condemn Extr. de Caus Poss propr c. cum Super. de Offic. Deleg c. ex Literis which is supposed to hold true by Custome and inasmuch as the cognizance and reformation of such matters do belong to the Ecclesiastical Court whence it is that an Archdeacon may impose a penalty on Lay-men for the not repairing their Parish-Church within his Jurisdiction Extr. eod c. ult Extr. de Offic. Ord. c. 1. Lindw ubi supr verb. Imperitiam For it is expresly enjoyned and ordained That Archdeacons and their Officials shall at their Visitation of Churches take the condition of the Fabrick thereof into special consideration specially of the Chancel and in case there be need of Reparations shall set or fix a time within which such Reparations shall be finished which time is likewise to be set under a certain penalty Lindw de Offic. Archidiac c. Archidiaconi 8. By the Canon Law a man cannot be an Archdeacon under the age of 25 years Can. Nullus in propositum 60 Dist And by the Council of Trent he ought to
may not of the same Church exact one Procuration from the Rector another from the Vicar if he hath the Procuration in Victualibus of the Rector he ought to receive nothing of the Vicar nec è contra for one Procuration of one Church for one day is held sufficient dict c. Foelicis de Censib Nor do the Canons allow above one Procuration in case there be more Churches than one Visited in one and the same day the Reason whereof in Law because the Visitation is the Principal the Procuration is but the Accessory and the Visitation only of one day ought not to have the Procurations of more nor ought the Accessory to exceed the Principal Lindw ibid. de Censib c. quamvis gl ib. ver Canones Nor ought there to be paid above one Procuration for the Mother-Church and the Chappel thereto belonging when they are Visited Can. ibid. ver una Ecclesia Yet there are Canonists of very good Authority as Andraeas and others who holding the contrary do positively assert That every Chappel dependent if Peopled and of ability shall pay its own proper Procuration at times of the Ordinary Visitation for that the Bishop is to have a respect to every individual Member of his Diocess It is therefore distinguished and confessed that this is true when the Chappel dependent hath a Curate proper of its one and distinct from or other than the Curate of the Mother-Church But otherwise when the Rector of the Superiour Church is Curate of both only doth exercise the Cure in the said Chappel by a Vicar not Perpetual but Temporal and removeable ad Libitum Gl. in d. ver una Ecclesia Lindwood on this occasion puts the Question Whether in case the Church be of one Diocess and the Chappel thereto annexed or united or dependent thereon of another whether in that case there shall at the Visitation be but one Procuration paid for both He resolves it thus viz. That if the Ordinary of the place where the said Chappel stands hath formerly had there his Visitation and Procuration ratione Visitationis ejusdem then and in that case the power of Visiting the same nor by consequence the Procuration due ratione Visitationis is not taken away from that Ordinary by such union or dependency Gloss ibid. in ver Ecclesia 7. By the aforesaid Council of Lateran all Visitors were limited to a certain number of Visitation-Attendants according to their several qualities as Archbishops to the number of forty or fifty men with their Horses the Bishop to twenty or thirty Cardinals to twenty five though they could not digest such an undervaluation Archdeacons to five or seven Deans that is Archipresbyteri Rurales as the Gloss expounds it to Two only Gl. in ver Decani Extr. eod c. cum Apostolus Extr. Com. de Censib c. vas Electionis And the truth is the Archdeacon according to the Canon may not have in his Ordinary Visitation above the number of seven persons if he exceed that number there is not any Procuration due for the Supernumeraries Lind. de Cens Procurat c. 1. ver excedant glo ibid. gl in ver Visitationis gl ib. in ver Debitam 8. The word Synodale seems to have Three significations as 1 it seems to signifie Conventus or a Meeting in the same sense with Synodus as being taken for the Meeting or Synod it self and so used by Gregory 3. in his Epistle to the Bishops of the Provinces of Baiory and Almany Catholica Sanctorum Patrum Authoritas jubet ut bis in anno pro salute populi Christiani seu exhortatione adoptionis filiorum SYNODALIA debent celebrari c. This Epistle you have cited by Cardinal Baronius in the Eighth Tome of his Annals about the year 738. 2 It seems to signifie the Acts done at a Synod as well as the Synod it self and in this sense you have it in the Tripartite History where mention is made of a Synod of Bishops assembled at Antioch out of divers Provinces who sent the Emperour Jovinian a Copy of the Nicene Creed Hunc Libellum meaning the said Creed in collectione Synodalium Sabini conscriptum invenimus In which place Synodalia seems to import the Acts of that Synod collected by that Sabinus 3 It signifies a Cense or Tribute in money paid to the Bishop or to some other for his use by the Inferiour Clergy The forementioned Author of the Historical Discourse of Procurations c. acquaints us That in the second part of the Appendix to the third General Council of Lateran there is an Epistle of Pope Alex. 3. to certain Archdeacons and Deans reproving them for extorting of moneys from the Clergy sub diversis nominibus in a fraudulent kind of way Et hujusmodi exactionem saith that Epistle ut eam Liberius videamini exigere quandoque Consuetudinem Episcopalem quandoque SYNODALIA quandoque Denarios Paschales appellantes And in this sense is the word Synodale here used and taken which the Archdeacon claims not so much Jure Communi Ecclesiastico as by Composition with or Prescription from the Bishop 9. This Synodal or Synodical duty was anciently known by two other Names which now are grown obsolete the one Cathedraticum probably from the original Cause thereof being ob honorem Cathedrae Episcopalis the other Synodaticum from the time of payment both used promiscuously The former of these viz. the Cathedraticum was a Cense of two shillings paid by the Inferiour Clergy to the Bishop as appears by the Acts of certain Councils of Bracar and Toledo as also by the Constitutions and Rescripts of Popes Ilud te volumus modis omnibus custodire ne qui Episcoporum Siciliae de Parochiis ad se pertinentibus nomine CATHEDRATICI amplius quam Duos Solidos praesumant accipere 10. q. 3. c. illud c. placuit ibi c. So Honorius 3. expresseth Two shillings nomine Cathedratici Extr. de Offic. Jud. Ordin c. conquerent gl ibid. in ver Duos solidos which is a Pension paid to the Bishop à qualibet Ecclesia secundum Loci consuetudinem as Panormitan upon that Text Abb. c. conquerent de Offic. Jud. Ord. The reason of this payment was according to Hostiensis in argumentum subjectionis ob honorem Cathedrae Hostiens in Sum. de Censib ex quibus ver Cathedraticum autem And the Council of Bracar Placuit ut nullus Episcoporum per suas Dioeceses ambulans praeter honorem Cathedrae suae id est Duos Solidos aliud aliquid per Ecclesias tollat cited in the Decree 10. q. 3. c. placuit Note that the Cistersians by virtue of their Order were priviledged from being present at the Synodical Meetings assembled by the Bishop within his Diocess and from the payments of those Synodals Gloss in ver Episcopus c. Episcopus non debet Dist 18. Extr. de Majoris Obed. c. 9. Quod supr gl ib. in ver Diocoesana This Cathedratick-payment began when
the Revenues of the Church first came to be divided and alotted to several Ministeries then it was that this payment was first made to the Bishop by the Beneficed Clergy within his Diocess Duaren ut supr l. 2. c. 1. fo 53. It is probable that this division of the Church Revenues was not far distant in time from the first or original distinguishment of Parochial Bounds upon which affair Pope Euaristus otherwise called Anacletus Graecus did first enter about the year 110. Volateran l. 22. Anast Biblioth Baron Annal. ad An. 112. nu 4 5 6. and was afterwards carried on by Pope Dionysius about the year 260. Baron Annal. ad An. 260. nu 17. Parochial Distribution in England was by Theodorus Archbishop of Canterbury about the year 668. Spelm. Concil 152 But Speed saith by Honorius the fifth Archbishop also of Canterbury about the year 636. It may not hence be inferr'd that this Cathedraticum or Synodal was only paid ratione Synodi for it was sometimes and very anciently paid also at Visitations as appears by the seventh Council at Toledo mentioned in the Decree 10. q. 3. c. inter caetera casus ibi where there is a Canon against the exacting of more than Two shillings only pro Cathedratico in Episcopal Visitations This Cense or payment though it be Onus Ecclesiasticum yet it is not Onus innovatum but Onus Ordinarium and by imposition of Law as appears by the Provincial Constitutions Solutio Cathedratici Synodatici Procurationum ratione Visitationis alia hujusmodi de quibus non dubitatur quin sunt Onera Ordinaria suum capiunt effectum ab impositione Legis Lindw de Offic. Vic. c. quoniam gl in ver Onera Ecclesiastica Yet Procurations differ from the other in this that Procurations are only Pensions but the other are properly Census The Synody or Synodal is by the Stat. of 34 H. 8. reckoned as a Church-due for recovery whereof provision is made by that Act and good reason for the said Synody or Synodal is a Pension certain and valued in the King's Books 10. The aforesaid Ingenious Author of the Historical Discourse touching Procurations c. after his deep search into Antiquity doth conjecturally conceive that the Pentecostal otherwise called Whitson-farthings is nothing else but the Annual Commemoration continuation or repetition of an Ancient payment or pension issuing out of the Oblations brought by the people long since specially at the time of the Foundation or Dedication of their several Churches or at some other Solemnity viz. the moiety or Third part of the Oblations then made The same being reserved by the Bishop and by a Contract seu quasi Contractu between him and the Founder of such Church or Priest assigned to attend the same settled in and upon the Episcopal See and payable yearly at or about the Feast of Pentecost These Pentecostalia were not as some conceive the Peter-pence here anciently paid for they were usually paid either at the Feast of St. Peter and Paul or on Lammas day but these Pentecostals seem to be paid upon or about the time that doth chiefly denominate the same viz. at the Feast of Pentecost and in the nature thereof seem to have reference to an Oblation frequently made by the Christians in the Elder times of the Church and to have some tendency to that Liberal Devotion which was then as frequent as Sacriledge is now In Leg. 18 Guilielm Conquestor De Denariis S. Petri seu Vectigali Romano viz. Liber homo qui habuerit Averia Campestria 30 denariis aestimanda dabit Denarium S. Petri. Pro 4 denariis quos donaverit Dominus quieti erunt Bordarii ejus ejus Boner ejus Servientes Burgensis qui de propriis Catallis habet id quod dimidia Marca aestimandum est det Denarium S. Petri. Qui in Lege Danorum est Liber homo habet Averia Campestria quae dimidia Marca in argento aestimantur debet dare Denarium S. Petro. Et per Denarium quem donaverit Dominus erunt quieti ii qui resident in suo Dominico Vid. Sâ—ldeni ad Eadmerum Notae Spicelegium p. 179. Leg. 18. By this Law of William the Conquerour it appears that the Peterpence had no affinity with the Pentecostals In Ancient times when the Bishop did visit Ecclesiatim his usage was to celebrate the Mass in the Church which he visited which indeed was every Parish within his Diocess and that by his Episcopal Authority the whole Diocess in respect of the Bishop being by the Law but Paroechia sua 10. q. 3. c. Quia Duarenus passim as the whole Province is said to be in respect of the Lord Archbishop of Canterbury At this Mass the people used to make their Offerings to the Bishop and one of the causes or reasons why or wherefore the people in Ancient times were obliged to bring their Oblations to the Church was propter Consuetudinem and that certis Festivitatibus among which the Feast of Pentecost was and is a most special one at which Feast there was in many places here in England an Oblation Anciently made by inferiour Churches and Parishes to the principal Mother-Church and whence probably the word Pentecostalia had its original denomination These Offerings by the Canon Law were and are only due to the Clergy and interdicted to the Laity sub districtione Anathematis 10. q. 1. c. Quia Sacerdotes c. Sanct. Patrum ibi In some places the Deans and Prebendaries of Cathedral Churches have them It is said That in the Cathedral Church of Salisbury there is a greater and a lâ—ss distinguished and known by this difference of Major Minor pars Altaris And in some Diocesses they are settled upon the Bishop and Archdeacon and made part of their Revenue for which the King hath Tenths and Subsidies The Cathedral or the Mother-Church of Worcester was Anciently and before the dissolution a Priory and among other Revenues had these Pentecostalia or Whitson-farthings yearly paid sub nomine Oblationum or Spiritual Profits tempore Pentecostes After the Dissolution when King H. 8. about the three and thirtieth year of his Reign new-founded and reendo'wd the said Church he restored these Pentecostalia after he had hâ—ld them about a year in his own hand to the said Church which as it is reported the Dean and Prebendaries thereof receive at this day and as appears by the Letters Patent Henricus Octavus c. Sciatis quod Nos de gratia nostra speciali ac ex certa scientia ac mero motu nostris dedimus concedimus ac per praesentes damus concedimus Decano Capitulo Ecclesiae Cathedralis Christi beatae Maria Virginis Wigorn. omnes illas Oblationes Obventiones sive Spiritualia proficua vulgariter vocat Whitson farthings annuatim collect sâ—ve recepta de diversis Viliatis in Comitat. nostris Wigorn. Warwic 〈◊〉 infra Archidiaconatum Wigorn
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
the Bishop of London Willielmus Dei gratia Rex Anglorum R. Bainardo S. de magna Villa P. de Vabines caeterisque meis Fidelibus de Essex de Hertfordshire de Middlesex Salutem Sciatis vos omnes c. In which Charter the Tenor of the foresaid Charter is recited word by word in English The like Charter he also there says is in the Book of Charters of the Archbishop of Canterbury Whereby it is most evident that the Bishops Consistories are of great Antiquity and that they were erected when Causes Ecclesiastical were removed from the Tourne which is a Court of Record holden before the Sheriff to the Consistory So that this Law made by the Conqueror seems as Mr. Blount in his Nomo-Lexiâ—on on this word well observes to give the Original of the Bishops Consistory as it now sits with us distinct and divided from the Hundred or County-Court wherewith it seems probable in the time of the Saxons to have been joyn'd 9. Lindwood in the Provincial Constitutions upon this word Consistorium quoad Episcopos puts this difference between Consistorium and Tribunal Tribunal says he est Locus in quo sedet Ordinarius inferior but Consistorium est Locus in quo sedet princeps ad Judicandum Lindw de foro Competent c. excussis in ver Consistoria Albeit according to the vulgar acceptation of these words we refer Tribunal to any place of Judicature but Consistorium to that only which is of Ecclesiastical Jurisdiction 10. This Chancellor of a Diocess as he is Oculus Episcopi ought to have an eye into all parts of the Diocess and hath immediately under the Ordinary Jurisdiction of all matters Ecclesiastical within the same not only for reformation of Manners and punishment of Enormities of a Spiritual nature by Ecclesiastical Censures but also in Causes Matrimonial and Testamentary as to the Probat of Wills and granting Letters of Administration of the Goods of a person dying Intestate where there are not Bona Notabilia In which case the Will shall be proved or Administration granted by the Prerogative of the Archbishop And wherever there is an Administration duly granted there the Administrator doth almost in all points represent the person of the Intestate as legally as any Executor can the person of his Testator Testamentarily For this Administrator in construction of the Common Law is that person to whose trust care conduct and management the Goods and Chattels Real and Personal of the Intestate are committed by the Ordinary or such other as under him is duly Authorized to grant the same But under this Notion or Appellation of Administrator neither the Civil nor the Canon Law knows any such Officer only they take notice of Administrators as Governours of Persons Places or Things Decret Can. 23. q. 5. cap. 26. Extra Com. cap. 11. And it is most probable that the Common Law might as some conceive take its light as to this Officer under this notion as now practicable with us from the Constitution of the Emperour Leo. I. 28. nulli licere C. de Episc Cler. whereby it is Ordained That the Bishop shall take care to see such Legacies duly performed as are bequeathed for the Redemption of Captives in case the Testator appoint not one to execute his Will in that particular This power given to the Ordinary of making Administrators in case of Intestation and of Authorizing them to act as Executors is very ancient by the Statute-Law And if any Ordinary Chancellor c. having power by the Act of 21 H. 8. to grant the Administration of the goods of him that dieth Intestate to the Widow or next of Kin shall take any Reward for the preferring any person before another to the Administration it is Bribery 11. A lawful Administrator may render his own Goods liable to the Intestates Debts either by a Devastavit or by a False Plea Judicially and his Executor or Administrator shall not succeed him in the Administration to his Intestate unless qualified to require Administration of both Intestates but the Administration of the first Intestates goods is de novo to be committed to his next of Kin as de bonis non Adm. And if a Stranger by any Act make himself Executor de son tort the Creditors and Legataries may not sue him as Administrator albeit it be an Administration in Fact but must sue him as Executor in his own wrong who notwithstanding is not any further liable than to the value of the Deceased's Goods as Assets in his hands But in case the Ordinary shall without granting any Letters of Administration make his Letters Ad Colligendum in that case he makes himself liable to Actions pro tanto as if himself were actually possessed of the Goods of the deceased And here Note That Funeral expences according to the degree and quality of the Deceased are to be allowed of his Goods before any debt or duty whatsoever for that is Opus pium or Charitativum 12. And as in these Consistories there is a great variety of Ecclesiastical Causes heard and determined so also the Officers belonging thereto are many and of various qualities and degrees whereof some seem to be magis principales others minus principales but others in the popular account as meer Animalia tantum Rationalia by whom they understand Apparitors who in truth are Summoners and whose Character in Law is this viz. He is that person whose employment is to serve such Processes as issue out of the Spiritual or Ecclesiastical Courts and as a Messenger to Cite Offenders and others to make their appearance therein as occasion shall require By the Statute of 21 H. 8. c. 5. as also by the 138th Canon of the Ecclesiastical Constitutions Apparitors are called Summoners or Sumners by which Canon the Abuses aud Grievances pretended to be practiced by such Summoners or Apparitors are sufficiently redressed For as the multitude of them is thereby abridged and restrained by Decreeing and Ordaining That no Bishop or Archdeacon or their Vicars or Officials or other inferiour Ordinaries shall depute or have more Apparitors to serve their Jurisdictions respectively than either they or their Predecessors were accustomed to have Thirty years before the publishing the said Ecclesiastical Constitutions So it is likewise provided by the said Canon That the said Apparitors shall by themselves faithfully execute their Offices and not by any colour or pretence whatsoever cause or suffer their Mandats to be executed by any Messengers or Substitutes unless upon some good cause to be first allowed and approved by the Ordinary of the place It is also further Provided by the said Canon That they shall not take upon them the Office of Promoters or Informers for the Court nor shall exact more or greater Fees than are prescribed by the 135th Canon of the said Ecclesiastical Constitutions And in case either the number of Apparitors deputed shall exceed the aforesaid Limitation or any of
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
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
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
that upon such Appeal a Commission under the Great Seal shall be directed to certain persons particularly designed for that business so that from the highest Court of the Archbishop of Canterbury there lies an Appeal to this Court of Delegates Of this Subject of Appeals the Lord Coke says That an Appeal is a Natural defence which cannot be taken away by any Prince or power and in every Case generally when Sentence is given and Appeal made to the Superiour the Judge that did give the Sentence is obliged to obey the Appeal and proceed no further until the Superiour hath examined and determined the cause of Appeal Nevertheless where this Clause Appellatione remota is in the Commission the Judge that gave Sentence is not bound to obey the Appeal but may execute his Sentence and proceed further until the Appeal be received by the Superiour and an Inhibition be sent unto him For that Clause Appellatione remota hath Three notable effects 1 That the Jurisdiction of the Judge à quo is not by the Appeal suspended or stopped for he may proceed the same notwithstanding 2 That for proceeding to Execution or further process he is not punishable 3 That these things that are done by the said Judge after such Appeal cannot be said void for they cannot be reversed per viam Nullitatis But if the Appeal be just and lawful the Superiour Judge ought of right and equity to receive and admit the same and in that case he ought to reverse and revoke all mean Acts done after the said Appeal in prejudice of the Appellant At the Parliament held at Clarendon An. 10 H. 2. cap. 8. the Forms of Appeals in Causes Ecclesiastical are set down within the Realm and none to be made out of the Realm Ne quis appellat ad dominum Papam c. so that the first Article of the Statute of 25 H. 8. concerning the prohibiting of Appeals to Rome is declaratory of the ancient Law of the Realm And it is to be observed says the Lord Coke that the first attempt of any Appeal to the See of Rome out of England was by Anselme Archbishop of Canterbury in the Reign of William Rufus and yet it took no effect Touching the power and Jurisdiction of the Court of Delegates Vid. le Case Stevenson versus Wood. Trin. 10 Jac. B. R. Rot. 1491. in Bulstr Rep. par 2. wherein these Three points are specially argued 1 Whether the Judges Delegates may grant Letters of Administration 2 Whether in their person the King be represented 3 Whether the Court of Delegates may pronounce Sentence of Excommunication or not 14. The High Commission-Court in Causes Ecclesiastical was by Letters Patents and that by force and virtue of the Statute of 1 Eliz. cap. 1. the Title whereof is An Act restoring to the Crown the Ancient Jurisdiction Ecclesiastical c. the High Commissioners might if they were competent that is if they were Spiritual persons proceed to Sentence of Excommunication What the power of this Court was and whether they might in Causes Ecclesiastical proceed to Fine and Imprisonment is at large examined by the Lord Coke in the Fourth part of his Institutes where he reports the Judgment and Resolutions of the whole Court of Common Pleas thereon Pasch 9 Jac. Reg. upon frequent Conferences and mature deliberation set down in writing by the order and command of King James Likewise whom and in what Cases the Ecclesiastical Courts may examine one upon Oath or not there being a penal Law in the Case and whether the saying Quod nemo tenetur seipsum prodere be applicable thereunto Vid. Trin. 13 Jac. B. R. Burroughs Cox c. against the High Commissioners Bulstr par 3. 15. The Statutes of 24 H. 8. and 25 H. 8. do Ordain That upon certain Appeals the Sentence given shall be definitive as to any further Appeal notwithstanding which the King as Supream Governour may after such definitive Sentence grant a Commission of Review or Ad Revidendum c. Sir Ed. Coke gives two Reasons thereof 1 Because it is not restrained by the Statute 2 For that after a definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commision Ad Revidendum and what Authority the Pope here exercised claiming as Supream Head doth of right belong to the Crown and by the Statutes of 26 H. 8. cap. 1. and 1 Eliz. cap. 1. is annexed to the same Which accordingly was Resolved Trin. 39 Eliz. B. R. Hollingworth's Case In which Case Presidents to this purpose were cited in Michelot's Case 29 Eliz. in Goodman's Case and in Huet's Case 29 Eliz. Also vid. Stat. 8 Eliz. cap. 5. In the Case between Halliwell and Jervoice where a Parson sued before the Ordinary for Tithes and thence he appeals to the Audience where the Sentence is affirmed then the party appeals to the Delegates and there both Sentences are Repealed It was agreed That in such case a Commission Ad Revidendum the Sentences may issue forth but then such a Reviewing shall be final without further Appeal But if the Commissioners do not proceed to the Examination according to the Common Law they shall be restrained by a Prohibition 16. The Court of Peculiars is that which dealeth in certain Parishes lying in several Diocesses which Parishes are exempt from the Jurisdiction of the Bishops of those Diocesses and are peculiarly belonging to the Archbishop of Canterbury Within whose Province there are fifty seven such Peculiars for there are certain peculiar Jurisdictions belonging to some certain Parishes the Inhabitants whereof are exempt sometimes from the Archdeacons and sometimes from the Bishops Jurisdiction 17. If a Suit be in the Ecclesiastical Court for a Modus Decimandi if the Desendant plead payment it shall be tryed there and no Prohibition may be granted for that the Original Suit was there well commenced So if payment be pleaded in a Suit depending in the Ecclesiastical Court for any thing whereof they have the original cognizance But if a man sue for Tithes in the Ecclesiastical Court against J. S. and makes Title to them by a Lease made to him by the Parson and J. S. there also makes Title to them by a former Lease made to him by the same Parson so that the Question there is which of the said Leases shall be preferred In this case a Prohibition shall be granted for they shall not try which of the said Leases shall be preferr'd although they have cognizance of the Original for the Leases are Temporal If a man having a Parsonage Impropriate make a Lease for years of part of the Tithes by Deed and the Deed be denied in the Ecclesiastical Court and Issue taken thereon a Prohibition shall be granted If a Parson compound with his Parishioner for his Tithes and by his Deed grant them to him for a certain Sum for one year according to Agreement and after he
but by death or resignation for otherwise Dilapidations should be in the time of the Successor and he cannot maintain Hospitality 8. The wasting of the Woods belonging to a Bishoprick is in the Law understood as a Dilapidation as was formerly hinted Note By Coke Chief Justice a Bishop is only to fell Timber for Building for Fuel and for his other necessary occasions and there is no Bishoprick but the same is on the Foundation of the King the Woods of the Bishoprick are called the Dower of the Church and these are alwaies carefully to be preserved and if he fell and destroy this upon a motion thereof made to us says the Lord Coke we will grant a Prohibition And to this purpose there was a great Cause which concerned the Bishop of Duresm who had divers Cole-Mines and would have cut down his Timber-Trees for the maintenance and upholding of his Works and upon motion in Parliament concerning this for the King Order was there made that the Judges should grant a Prohibition for the King and we will here says he revive this again for there a Prohibition was so granted And so upon the like motion made unto us in the like case we will also for the King grant a Prohibition by the Statute of 35 E. 1. If a Bishop cut down Timber-Tres for any cause unless it be for necessary Reparations as if he sell the same unto a Stranger we will grant a Prohibition And to this purpose I have seen said he a good Record in 25 E. 1. where complaint was made in Parliament of the Bishop of Duresm as before for cutting of Timber-Trees for his Cole-Mines and there agreed that in such a case a Prohibition did lie and upon motion made a Prohibition was then granted and the Reason then given because that this Timber was the Dower of the Church and so it shall be also in the case of a Dean and Chapter in which cases upon this ground we will grant as he said Prohibitions and the whole Court agreed with him herein Also in Sakar's case against whom Judgment being given for Simony yet he being by assent of parties to continue in the Vicarage for a certain time this time being now past and he still continuing in possession and committing of great Waste by pulling down the Glass-windows and pulling up of Planks the Court granted a Prohibition and said That this is the Dower of the Church and we will here prohibit them if they fell and waste the Timber of the Church or if they pull down the houses And Prohibition to prevent Dilapidations and to stay the doing of any Waste was in that case awarded accordingly 9. In a Prohibition the Case was this A Vicar lops and cuts down Trees growing in the Church-yard the Churchwardens hinder him in the carriage of the same away and they being in Trial of this Suit The Churchwardens by their Counsel moved the Court for a Prohibition to the Vicar to stay him from felling any more Coke Chief Justice This is a good cause of Deprivation if he fell down Timber-Trees and Wood this is a Dilapidation and by the Resolution in Parliament a Prohibition by the Law shall be granted if a Bishop fells down Wood and Timber-Trees The whole Court agreed clearly in this to grant here a Prohibition to the Vicar to inhibit him not to make spoil of the Timber this being as it is called in Parliament the Endowment of the Church Coke we will also grant a Prohibition to restrain Bishops from felling the Wood and Timber-Trees of their Churches And so in this principal Case by the Rule of the Court a Prohibition was granted CHAP. XVI Of Patrons de jure Patronatus 1. What Patron properly signifies in the Law the Original thereof and how subject to corruption 2. In what case the Bishop may proceed de jure Patronatus and how the Process thereof is to be executed 3. How the Admittance ought to be in case the same Clerk be presented by two Patrons to the same Benefice 4. In what cases of Avoydance Notice thereof ought to be given to the Patron and what course in that case the Bishop is to take in case he knews not the true Patron 5. Several Appellations in Law importing Patron 6. How many waies a Church may become Litigious 7. Whether an Advowson may be extended 8. In what case the Patron may Present where the King took not his turn upon the first Lapse 9. A Patron may not take any benefit of the Glâ—be during a Vacancy 10. In what case the Patron shall not by bringing the Writ of Qua. Imp. against the Bishop prevent the incurring of the Lapse to the Ordinary 11. The King is Patron Paramount and Patron of all the Bishopricks in England The Charter of King John whereby Bishopricks from being Donative became Elective 1. PATRON by the Canon Law as also in the Feuds wherewith our Common Law doth herein accord doth signifie a person who hath of right in him the free Donation or Gift of a Benefice grounded originally upon the bounty and beneficence of such as Founded Erected or Endowed Churches with a considerable part of their Revenue De Jur. Patronat Decretal Such were called Patroni à patrocinando and properly considering the Primitive state of the Church but now according to the Mode of this degenerating Age as improperly as Mons à movendo for by the Merchandize of their Presentations they now seem as if they were rather the Hucksters than Patrons of the Church But from the beginning it was not so when for the encouragement of Lay-persons to works of so much Piety it was permitted them to present their Clerks where themselves or their Ancestors had expressed their Bounty in that kind whence they worthily acquir'd this Right of Jus Patronatus which the very Canon Law for that reason will not understand as a thing meerly Spiritual but rather as a Temporal annexed to what is Spiritual Quod à Supremis Pontificibus proditum est Laicos habere Jus Praesentandi Clericos Ordinariis hoc singulari favore sustinetur ut allectentur Laici invitentur inducantur ad constructionem Ecclesiarum Nec omni ex parte Jus Patronatus Spirituale censeri debet sed Temporale potius Spirituali annexum Gloss in c. piae mentis 16. q. 7. Coras ad Sacerdot mater par 1. cap. 2. Yet not Temporal in a Merchandable sense unless the Presentor and Presentee will run the hazard of perishing together for prevention whereof provision is made by that Solemn Oath enjoyn'd by the Fortieth Canon of the Ecclesiastical Constitutions whereof there was no need in former Ages less corrupt when instead of selling Presentations they purchased Foundations and instead of erecting Idol-Temples for Covetousness is Idolatry they Founded Built and Endowed Churches for the Worship of the True God Patroni in jure Pontificio dicuntur qui alicujus Ecclesiae extruendae c. Authores
which an Advowson appertains but only for term of their lives or of years by Intrusion or Disseism 6. A Church may become Litigious both before and by and after a Jure Patronatus Before as by a plurality of Presentations By as when in case of plurality of Presentations upon a plural Jure Patronatus the one Jury gives a Verdict for the Title of one Patron the other for the Title of the other Patron After as when after a Jure Patronatus awarded and Verdict thereupon given for one of the parties a third person presents before Admittance of his Clerk for whom the Verdict was given Upon a plural Jure Patronatus if one Jury give a Verdict for the Title of the one the other for the Title of the other Patron it is conceived in that case the Ordinary may refuse the Clerks of both Patrons and suffer the Church to Lapse And where a Third person presents after a Verdict as aforesaid but before the Clerk be Admitted whereby the Church becomes Litigious de Novo in that case the Bishop may award a new Jure Patronatus Also if the Bishop doubt the Patrons Title that presents he may as some conceive award a Jure Patronatus albeit the Church be not Litigious which is a safe way for prevention of any surprize to the rightful Patron or other Pretenders in which case if the Right of Patronage be found for another that had not before presented his Clerk may be admitted by the Ordinary who is no Disturber if he admit a Clerk that is presented before the Church becomes Litigious by a Second presentation for by the Verdict of the Jury aforesaid he is sufficiently warranted to admit and institute the Clerk for whose Patrons Title the Verdict is given in doing whereof he is no Disturber albeit the other Patron against whom the Verdict is given should after recover in a Quare Impedit And after a Verdict in a Jure Patronatus found for a Patron he ought to renew his Request to the Ordinary for the admission of his Clerk otherwise the Bishop may Collate in case the Church Lapse after Six months 7. Sir John Arundell and his Wife brought a Quare Impedit against the Bishop of Gloucester and others who pleaded in Bar that William Sturton was seized of a Mannor to which the Advowson was appendent and bound himself in a Statute-Merchant of 200 l. to one Long and the Statute was extended and conveyed the interest of the Statute to one of the Defendants and then the Church became void And by the Court the Advowson may be extended and if it become void during the Conusees Estate the Conusee may present 8. In Beverley's Case against the Archbishop of Canterbury where the question was Whether the Queen might take her turn to Present in regard she took not her turn when the first Lapse happened immediately at the first Avoidance by reason of the Incumbents having Two Benefices within the Stat. of 21 H. 8. And all the Justices of the Common Pleas after long and serious debate did Resolve That the Queen shall not now have her Presentation but the Patron because the Queen hath such Presentment by Lapse as the Bishop had and no other and could Present but to the present Avoydance then void And although Nullum tempus occurrit Regi yet we must distinguish it thus for where the King is limited to a time certain or to that which in it self is Transitory there the King is to do it within the time limited or in that time wherein the thing to be done hath Essence or Consistence or while it remaineth for otherwise he may not do it afterwards So where a Second presentment is granted to the King and he does not Present he may not after 9. During a Vacancy the Freehold of the Glebe is in Abeiance and not in the Patron who can take no benefit thereby in that time nor can he have any Action for Trespass done thereon in the time of such Vacancy Yet if a man hath an Annuity out of a Parsonage and he in the Vacancy thereof Release to the Patron it shall extinguish the Annuity 21 H. 7. 41 Co. 5. Forde 81. b. 10. If a Church becomes void by the death of the Incumbent or otherwise and the Patron within Six months bring a Quare Impedit against the Bishop and then Six months pass without any Clerk presented by the Patron to the Bishop in that case the Lapse shall incur notwithstanding the pendency of the Writ for it is not reasonable that the Ordinary should lose his Title of Lapse without any wrong done by him by a fraudulent Action brought without cause by the Patron and whereby the Ordinary is put to Expences without cause and by such fraudulent means the Patron might keep the Church perpetually void Hob. Rep. 270. Roll. Abr. verb. Presentment lit X. pag. 366. 11. The Jus Appellandi in defect of Justice and the Jus Praesentandi in case of Lapse seem to have a parallel resemblance with one another in their gradations for as they both primarily meet in the Ordinary so they both pass from him to the Metropolitan and from him to the King not only as Supream Ordinary but also as Patron Paramount of all the Bishopricks in England which as they were originally Donative per Annulum Baculum so now since King Johns time they are by Canonical Election for King John by his Charter dated the 15th of January in the 16th year of his Reign granted this priviledge to the Church in these words viz. Quod qualiscunque Consuetudo temporibus Praedecessorum nostrorum hactenus in Ecclesia Anglicana fuerit observata quicquid juris nobis hactenus Vindicaverimus de caetero in universis singulis Ecclesiis Monasteriis Cathedralibus Conventualibus totius Regni Angliae Liberae sint in perpetuum Electiones quorumcunque Praelatorum majorum minorum Salva Nobis haeredibus nostris Custodia Ecclesiarum Monasteriorum vacantium quae ad nos pertinent Promittimus etiam quod Nec impediemus nec impediri permittemus per Ministros nostros nec procurabimus quin in universis singulis Monasteriis Ecclesiis postquam vacuerint Praelaturâ—â— quemcunque voluerint Libere sibi praeficiant Electores Pastorum petita tamen à Nobis prius haeredibus nostris Licentia Eligendi quam non denegabimus nec differemus Et similiter post celebratam Electionem noster requiratur Assensus quem non denegabimus nisi adversus eandem Rationale proposuerimus legitime probaverimus propter quod non debemus consentire c. Vid. Davis Rep. in the case of Praemunire â—o 92 93. CHAP. XVII Of Parsons and Parsonages 1. Parson what he is in the intendment of Law 2. What is meant by Parson imparsonee 3. The Freehold of Church and Glebe is in the Parson what interest he hath in the Church-yard and
than the Bishop himself or other Ordinary which also must be given to the Patron personally if he live in the same County and if in another County then Publication thereof in the Parish-Church and affixed on the Church-Door will serve turn if such Notice doth express in certain as it ought to do the cause of the Deprivation c. As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion the Ordinary is to give the Patron Notice thereof which Notice ought to be certain and particular Before Lapse can incurr against a Patron Notice of his Clerks being refused by the Ordinary for Insufficiency must be given to the person of the Patron if he may be found and it is not in that Case sufficient to fix an Intimation thereof on the Door of that Church to which he was Presented D. 16 El. 327. 7. b. Adjudged 5. It is said That a Lapse is not an Interest naturally as is the Patronage but a meer Trust in Law And if the Six months be incurred yet the Patrons Clerk shall be received if he be Presented before the Church be Filled by the Lapse Observe 7 Eliz Dyer 241. for it seems by that case that the Patron should Present against the Kings Lapse for he hath dammage but for half a year And Hob. Chief Justice says That a Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and lastly in the King the end of which Trust is to provide the Church of a Rector in default of the Patron and yet as for him and to his behoof And therefore as he cannot transfer his Trust to another so cannot he divert the thing wherewith he is entrusted to any other purpose Nor can a Lapse be granted over as a Grant of the next Lapse of such a Church neither before it fall nor after If the Lapse incurr and then the Ordinary die the King shall Present and not the Executors of the Ordinary For it is rather an Administration than an Interest and the King cannot have a Lapse but where the Ordinary might have had it before If an Infant-Patron Present not within Six months the Lapse incurrs The Law is the same as against a Feme-Covert that hath right to Present 33 E. 3. Qua. Impedit 46. 6. In the first Paragraph of this Chapter it is said That Tempus Semestre authoritate Concilii non incipit versus Patronos nisi à tempore Scientiae mortis personae that is of the last Incumbent And so Adjuged upon a Writ in the time of E. 2. and said to be per Legem Consuetudinem Regni hactenus usitatas As if the Incumbent die beyond Sea the Six months are not computed from the time of his death but from the time of the Patrons knowledge thereof and so it was Adjudged in a Quare non admisit between the Abbot of St. Mary Eborum and the Bishop of Norwich as aforesaid For the Six months are not reckoned from the death of the Last Incumbent but from the time the Patron might according to a reasonable Computation having regard to the distance of the place where he was at the time of the Incumbents death if he were within the Realm at that time have come to the knowledge thereof for he ought afterwards to take notice thereof at his peril and not before for that he was in some other County than that wherein the Church is and wherein the Incumbent died And if the Ordinary refuse a Clerk for that he is Criminous in that case the Patron shall not have Six months to Present after Notice thereof given him but of the Avoidance The Law is the same in case of Refusal by reason of Illiterature But if the Church be void by Resignation or Deprivation the Six months shall be computed from the time of Notice thereof given to the Patron and not from the time of the Avoidance Yet if the Ordinary refuse a Clerk because he is Criminous he is to give notice thereof to the Patron otherwise the Lapse doth not incurr So likewise if he be refused for Common Usury Simony Adultery or other Notorious Crime Notice thereof ought to be given to the Patron otherwise the Lapse doth not incurr A Lay Patron ought to have Notice ere the Lapse shall incurr in case his Clerk be refused for Illiterature otherwise as to a Spiritual Patron because the Law presumes he might well know of his insufficiency before he presented him And if the Bishop who took a Resignation dies the Lapse doth not incurr to his Successor without Notice to the Patron 7. In a Quare Impedit the Defendant pleaded That he demanded of J. S. the Presentee of the Plaintiff to see his Letters of Orders and he would not shew them and also demanded of him his Letters Missive or Testimonial testifying his ability and because he had not his Letters of Orders nor Letters Missive nor made any proof of them to the Bishop he desired leave of the Bishop to bring them who gave him a week and he went away and came not again and the Six months passed and the Bishop Collated by Lapse It was Adjudged in this Case That these were no Causes to stay the Admittance of the Clerk for the Clerk is not bound understand it only at Common Law to shew his Letters of Orders and Letters Missive to the Bishop but the Bishop must try him upon Examination 8. A Parson of the Church of S. of the value of Ten pound took a Second Benefice without a Dispensation and was Instituted and Inducted and continued so for twelve years The Patron presented J. S. who was Instituted and Inducted and so continued divers years and died The Queen presented the Defendant C. ratione Lapsus in the time of A. who was Instituted and Deducted B. the Patron brought a Quare Impedit against the Ordinary and C. It was held by the Justices That the Writ did well lie and that Tempus occurrit Reginae in this Case and that last Clerk should be removed And it was held by the Justices That upon a Recovery in a Quare Impedit any Incumbent that comes in pendente Lite should be removed 9. In the Case between Cumber and the Bishop of Chichester it was Resolved 1 If Title of Lapse accrues to the King and the Patron Presents yet the King may Present at any time as long as the Presentee is Parson but if he dies or Resigns before the King Presents he hath lost his Presentment 2. If the King hath Title by Lapse because a Parson hath taken a Second Benefice if the Parson dies or Resigns his First Benefice and the Patron Presents whose Presentee Resigns upon Covin and dies the King hath lost that Presentment CHAP. XXIII Of Collation Presentation and Nomination 1. What Collation is and how it differs from Presentation 2. Collation
the Writ but if it be Full then he certifies the Justices And the Archbishop is Sworn to the Canons and he vouched 22 H. 6. 45. Coke lib. 6. 49 and 52. Dyer 260. F. N. B. 47. Dyer 364. 14 H. 7. 22. 34 H. 6. 41. 9 E. 3. Quare non admisit 18. E. 4. 7. 5. In Rud's Case against the Bishop of Lincoln it was among other things Resolved by the Court in a Quare Impedit That when one usurps upon a Lease for years that this Usurpation gains the Fee and puts the very Patron out of possession and though by the Statute of Westm 2. cap. 5. he in reversion after the Lease may have a Quare Impedit when the Church is void or may Present and if he Present and his Clerk be Admitted and Inducted that then he is Remitted yet until it be recovered or his Clerk be in the Usurper hath the Fee and against him lies the Writ of Right c. Also that the Patron which hath recovered in a Quare Impedit may Present and that being accepted and Institution and Induction ensuing thereupon it is good 6. Admission is when the Bishop upon Examination of the Clerk Admits him to be able and sufficient saying Admitto te habilem The Lord Coke in the Fourth Part of his Institutes says That upon consideration had of the several Statutes whereof mention is there made If an Alien or Stranger born be Presented to a Benefice the Bishop ought not to Admit him but may lawfully refuse him There are several things which the Statute-Law of this Realm doth require in him which shall be Admitted to a Benefice for no person may be Admitted to any Benefice with Cure except he then be of the Age of 23 years at least and a Deacon and shall first have subscribed the 39 Articles in the presence of the Ordinary and publickly read the same in the Parish-Church of that Benefice with Declaration of his unfeigned Assent thereunto and except he be Admitted to Minister the Sacraments within one year next after his Induction if he were not so Admitted before he shall upon every such default be ipso facto deprived And none shall be made a Minister or Admitted to Preach or Administer the Sacraments under the Age of 24 years and unless he bring with him to the Bishop a sufficient Testimonial and be able to render an Account of his Faith in Latin All which appears by the Statute of the 13th of Eliz. whereby it is likewise Provided That none shall be Admitted to any Benefice with Cure of or above the yearly value of Thirty pounds in the King's Books unless he shall then be a Batchelor of Divinity or a Preacher lawfully allowed by some Bishop within this Realm or by one of the Universities of Oxford or Cambridge and that all Admissions to Benefices Institutions Inductions Tolerations Dispensations Qualifications and Licenses whatsoever made contrary to the Premisses shall be utterly void in Law And by the Three and thirtieth Canon of the Ecclesiastical Constitutions Ratified and Confirmed by King James under his Letters Patents An. 1603. it is in Conformity to many Decrees of the Ancient Fathers further Ordained That no person shall be Admitted into Sacred Orders except he shall at the same time Exhibit to the Bishop a Presentation of himself to some Ecclesiastical Preferment then void in that Diocess or bring to the said Bishop a True and undoubted Certificate that either he is provided with some Church within the Diocess where he may attend the Cure of Souls or of some Ministers place vacant either in the Cathedral of that Diocess or in some other Collegiate Church therein also scituate where he may exercise his Ministry Or that he is a Fellow or in right as a Fellow or to be a Chaplain in some Colledge in Oxford or Cambridge except he be a Master of Arts of Five years standing that liveth of his own charge in either of the Universities or except by the Bishop himself that doth Ordain him Minister to be shortly after to be Admitted either to some Benefice or Curateship then void And in case any Bishop shall Admit any person into the Ministry not qualified as aforesaid he is to keep and maintain him till he prefers him to some Ecclesiastical Living on pain of Suspension for one year from giving or Orders by the Archbishop assisted with another Bishop 7. If a Bishop shall refuse to Admit the Clerk the Writ of Quare non Admisit may lie in the Case yet the Ordinary before he Admits the Clerk Presented may take a reasonable time to examine him and if upon Examination there be just cause of Exception in respect of the Clerk Presented or otherwise in respect of the Patron Presenting he may justifie the non Admission of him for this Admission is no other than the Ordinary's Allowance of a Clerk Presented to a Church that is void But if the Bishop refuse to Admit the Clerk Presented to him by the Patron as scrupling the said Patron 's Right of Presentation and the said Patron after recover his Right of Presentation against the Bishop in the Common Bench he shall then have the Writ of Admittendo Clerico Hobart Chief Justice in the case of Colt and Glover against the Bishop of Coventry and Lichfield compares this Admission and such Acts of the Ordinary to the Admittance of a Copy-holder upon Surrender specially where the Admission of one be upon the Resignation of another Incumbent And he is there of opinion That if a Parson Appropriate which is Patron Present and his Clerk be not Admitted but refused for just cause and Notice given the Lapse shall incurr The usual Form or Tenor of an Admission into a Rectory or Parsonage runs in this manner viz. 〈◊〉 A. B. by virtue of this Instrument from John Lord Bishop of L. in his Triennial Visitation To all Clerks Rectors Vicars Ministers Chaplains and Curates whatsoever within this Diocess directed do Admit F. G. into real actual and corporal possession of this Church of R. together with all the profits dues members and appurtenances whatsoever thereunto belonging In the presence of those whose Names are under-written 8. Institution according to the Canon Law is no other than a Verbal Collation to a Benefice or some other Ecclesiastical Living De Instit lib. 4. Decretal Sexti and is by that Law taken for an Investure c. ad haec de Offic. Archid. c. cum venisset dic tit de Inst For when among the Romans a Clerk was Instituted the Custome was that by a Verbal Collation the Clerk was invested in the Benefice by the delivery to him of a Ring Staff Cap Pen or the like in the nature of Livery and Seisin in token of his possession of the thing to which he was so Instituted c. cum olim de re Judic cap. ex ore de iis quae si à Praelat cap.
Law which will not be good if the Institution were not good All which was also the Opinion of the Court in the Case aforesaid for if the Question be whether Parson or no Parson which comprehends Induction it is Triable at the Common Law And although by the Institution the Church if Full against all persons save the King yet he is not compleat Parson till Induction for though he be admitted ad Officium by the Institution yet he is not entitled ad Beneficium till Induction 18. In an Ejectione Firmae brought by the Lessee of Rone Incumbent of the Church of D. it was found by Special Verdict that the King was the true Patron and that Wingfield entered a Coveat in vita Incumbentis he then lying in Extremis scil Caveat Episcopus nè quis admittatur c. nisi Convocatus the said Wingfield the Incumbent dies Naunton a Stranger Presents one Morgan who is Admitted and Instituted afterwards the said Wingfield Presents one Glover who is Instituted and Inducted and afterwards the said Rone procures a Presentation from the King who was Instituted and Inducted And then it came in◠question in the Ecclesiastical Court who had the best Right and there Sentence was given That the First Institution was Irrita Vacua Inanis by reason of the Caveat and then the Church being Full of the Second Incumbent the King was put out of possession and so his Presentation void But it was Adjudged and Resolved by all the Court for Rone For 1 it was Resolved That this Caveat was void because it was in the life of the Incumbent According to the Common Law if a Caveat be entered with the Bishop and he grant Institution afterwards yet it is not void After a Caveat entered Institution is not void by the Common Law Pasch 13 Jac. B. R. Hitching vers Glover Rol. Rep. Cro. par 2. 2. The Church upon the Institution of Morgan was Full against all but the King and so Agreed many times in the Books and then the Presentation of Glover was void by reason of the Super-institution and therefore no obstacle in the way to hinder the Presentation of Rone and therefore Rone had good Right And if the Second Institution be void the Sentence cannot make it good for the Ecclesiastical Court ought to take notice of the Common Law which saith That Ecclesia est plena consulta upon the Institution and the person hath thereby Curam animarum And as Doderidge Justice said He hath by it Officium but Beneficium comes by the Induction And although by the Ecclesiastical Law the Institution may be disannull'd by Sentence yet as Lindwood saith Aliter est in Angl. And Doderidge put a Case out of Dr. Student lib. 2. If a man Devise a Sum of Money to be paid to J. S. when he comes to Full age and he after sue for it in the Spiritual Court they ought to take notice of the Time of Full age as it is used by the Common Law viz. 21. and not of the time of Full age as it is in the Civil Law viz. 25. So in this case for when these Two Laws meet together the Common Law ought to be preferred And when the Parson hath Institution the Archdeacon ought to give him Induction Vid. Dyer 293. Bedingfield's Case cited by Haughton to accord with this Case 19. By the Court That if an Archdeacon make a general Mandate for the Induction of a Parson viz. Vnivers personis Vicariis Clericis Literatis infra Archidiaconat meum ubicunque Constitut That if a Minister or a Preacher who is not resident within the Archdeaconry makes the Induction yet it is good And the Opinion of four Doctors of the Civil Law was shewn in the Court accordingly upon a Special Verdict 21. In the Case of Strange against Foote the sole Point upon the Special Verdict was If one Prideoux being Admitted and Instituted to a Prebendary with the Cure 4 Eliz. be being but Nine years of age notwithstanding the Statute it is meerly void Note 4 H. 6. 3. That if a Feme who is an Infant under 14 years hath issue it is a Bastard 21. It is said at the Common Law that after Induction the Admission and Institution ought not to be drawn into question in the Ecclesiastical Court for they say That after Induction the Ecclesiastical Law may not call into question the Institution That by Institution the Church is full against Common persons but not against the King and that by Induction the King may be put out of possession And in the Case between Rowrth and the Bishop of Chester it was Resolved That after an Induction an Institution is not to be examined in the Ecclesiastical Court but by a Quare Impedit only But yet the Justices if they see cause may write to the Bishop to Certifie concerning the Institution 22. Two Patrons pretended Title to Present the one Presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after he there obtained Institution and Induction by the Archbishop Afterwards the Inferior Bishop Instituted and Inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction as was there said for that would determine the Incumbency which is triable at Common Law 23. In a Prohibition prayed to the Ecclesiastical Court the Case appeared to be this viz. Holt was Presented Instituted and Inducted to the Parish-Church of Storinton afterwards Dr. Wickham draws him into the Ecclesiastical Court questioning of him for some matters as touching the validity of his Induction and upon this a Prohibition was by him prayed Williams Justice A Prohibition here in this Case ought to be granted this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in question with the determination of which they ought not to intermeddle also matter of Induction and the validity thereof is determinable at the Common Law and not in the Ecclesiastical Court and therefore a Prohibition ought to be granted and the whole Court agreed with him herein and therefore by the Rule of the Court a Prohibition in this Case was granted CHAP. XXV Of Avoidance and Next Avoidance as also of Cession 1. What Avoidance is how Twofold 2. The difference in Law between Avoidance and next Avoidance 3. How many waies Avoidanee may happen what Next Avoidance is The word Avoidance falls under a double Acceptation in Law 4. The Next Avoidance may not be granted by a Letter it cannot be granted but by Deed. 5. Grant of a Next Avoidance by the Son Living the Father Tenant in Tail is void 6. How Avoidance may be according to the Canon Law which
yet is otherwise by Statute Law 7. The Release of the Next Avoidance made after the Church becomes void is void 8. A wide difference between the Common Law and the Canon in respect of Plenarty and Voidance 9. What Cession is and who shall Present in that case 10. A Parson Beneficed accepting an Archdeaconry falls not under this Cession 11. In case of Cession the Ordinary is to give Notice to the Patron otherwise the Lapse doth not incurr against him 12. In what case the former Benefice is not void by Cession notwithstanding the taking of another Incompatible and without Dispensation And in what case a Church void is held Void as to all persons except an Vsurper 13. In case of Three Grantees of the Next Avoidance whether Two of them may Present the Third being a Clerk 14. What difference between an Avoidance by Parliament and an Avoidance at the Ecclesiastical Law 15. In what case an Advowson granted to a man shall enure to him only for his life and not go to his Executors 16. A man having an Advowson in Fee of the Church whereof himself is Incumbent Deviseth that his Executors should next Present Whether such Devise of the Next Avoidance be good 17. A grant of a Next Avoidance to one is not after grantable by the same Grantor to another 18. Whether the Greating of an Incumbent a Bishop in Ireland be a sufficient cause of Avoidance 19. Where a Next Avoidance is granted to Two whereof the one Release to the other that Other may after bring a Quare Impedit in his own Name 20. If one Grantee of the Next Avoidance Present the other Grantee of the same Avoidance whether such Grant be void or not 1. AVoidance is when a Benefice or other Ecclesiastical Living is void of a lawful Incumbent which generally may be said to be Twofold either in Fact and in deed as when the Incumbent is dead or actually deprived or in Law as when the same person or Parson hath more Benefices than one Incompatible having no Dispensation nor qualified for Plurality Or an Avoidance is either Temporal or Spiritual 1 Temporal as by death of the Incumbent 2 Spiritual as by Resignation Deprivation Creation Cession The Temporal is an Avoidance de facto the Spiritual is an Avoidance de jure Of this latter or Spiritual Avoidance the Ecclesiastical Court takes cognizance and determines and therefore the Supream Head may so dispense there that such Avoidance in Law shall never come to be an Avoidance in Deed and of this Avoidance in Law no Title accrues to the Patron unless something be thereupon done by the Ecclesiastical Court as a Declaratory Sentence or such like But upon Avoidance in Deed Presentment accrueth to the Patron presently Anciently when a Bishop was also the Parson of any Benefice either in right of his Bishoprick or that the Benefice was annexed to his See for the provision of his Table or the better maintenance of Hospitality the Fruits of such Benefice or Parsonage during every vacancy or Avoidance of such Bishoprick where the Bishop was both Lord of a Mannor and Parson of a Parsonage thereto annexed did not come to the King as they now do whereby the Parsonage and Mannor are both consolidated into one being now both holden to be Temporalties but the Parsonage came to the Archbishop of the Province as a Spiritualty granted to his See by Priviledge during the vacancy of the Sees of such Bishops as were in his Province as may appear by the Records of the Lord Archbishop of Canterbury Ex Registro Archi-episc Cant. Ridl View cap. 6. Sect. 1. 2. There is in operation of Law a wide difference between Avoidance and Next Avoidance the former is in esse the other is only in passe the former is the want of an Incumbent upon a Benefice de praesenti the other is the Grant of a supply of that want de futuro and is the Grant of a Next Avoidance in a Parsonage or other Spiritual promotion which is Grantable whiles there is an Incumbent actually in being and is in the nature of a thing in Action and therefore will not pass without Deed. But a present Avoidance though it be not meerly a thing in Action yet it is not Grantable in that kind as the other The present Avoidance is not valuable and therefore shall not be Assets it may be otherwise with a Next Avoidance in some Cases for the Next Avoidance is but a Chattel the Grant whereof is not good without Deed For an Advowson or the Patron 's Right of Presentation to a Church is not a Spiritual but a Temporal Inheritance grantable by Deed and if Appendant as the Mannor it self to which it is Appendant as an Accessory to its Principal 3. The Cognizance of Voidance of Benefices is Ecclesiastical by the Statute 25 Ed. 3. cap. 8. it being the want of an Incumbent on a Benefice as aforesaid and is opposed to Plenarty This Voidance may be either by Death Deprivation Law or Act of Parliament Cession or Plurality Resignation Creation Incapacity Union Non-payment of Tenths c. So that a Voidance may happen to be such either in Law or in deed virtually or actually Resignation is Juris proprii spontanea Refutatio or the voluntary yielding up of the Incumbent into the hands of the Ordinary his interest and right which he hath in his Benefice Touching the Form of Resignation and Protestation which must be when the party will Resign vid. Regist fo 302. F. N. B. fo 273. and this Resignation which is one of the causes of Avoidance is to be made to the Ordinary for it is a Rule in the Canon Law Apud eum debet fieri Renunciatio apud quem pertinere dignoscitur Confirmatio The Next Avoidance is only a Power legally granted to another by the right Patron to Present a Clerk to the Church when it shall next become void And during such Voidance of a Parsonage the Franktenement of the Glebe thereof is said so be in no man but is said to be in Abeyance that is only in the remembrance intendment and consideration of the Law that though for the present during the time of such Vacancy it be not actually in any person yet it is by way of Abeyance in hope and expectation belonging to such one as shall next enjoy the same The word Avoidance hath Two significations in the Law the one and that here intended is when a Benefice or any Ecclesiastical Living becomes Void of an Incumbent the other may be that which is understood by what we intend in Pleadings in Chancery when we say Confessed or Avoided Traversed or Denied c. which hath no relation to the matter in hand Likewise after the death of a Bishop or Parson the Freehold is in Abeyance of necessity but the Law will not admit the framing of Abeyances needless and in vain as in Vacations of Bishops Parsons or the like
the King Confirms and afterwards he is Inducted to the Church of D. In this Case it was Adjudged That the Dispensation came too late because it came after the Institution for by the Institution the Church is full against all persons except the King and as to the Spititualties he is full Parson by the Institution 2. Resolved That admit the Church was not full by the Institution until Induction yet the Dispensation came too late for that the words of the Statute of 21 H. 8 of Pluralities are may purchase Licence to receive and keep two Benefices with Cure of Souls and the words of Dispensation in this case were recipere retinere and because by the Institution the Church was full he could not purchase Licence to receive that which he had before and he cannot retain that which he cannot receive 26. In the case of a Prohibition it was Resolved That by the Common Law before the Statute of 21 H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Archbishop had not Authority by the Statute of 25 H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute But yet the Statute as to those Dispensations which the Archbishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal CHAP. XXVII Of Deprivation 1. What Deprivation is and in what Court to be pronounced 2. The Causes in Law of Deprivation 3. In what Cases Deprivation ipso facto without any Declaratory Sentence thereof may be 4. A Cardinal 's Case of Deprivation by reason of Miscreancy 5. The Papal Deprivation by reason of Marriage 6. What the Law is in point of Notice to the Patron in case of Deprivation by reason of meer Laity or Nonage 7. The difference of operation in Law between Malum prohibitum and Malum in se and in what Cases of Deprivation Notice ought to be given to the Patron 8. Deprivation by reason of Degradation which Degradation at the Canon Law may be two ways 9. Cawdry's Case of Deprivation for Scandalous words against the Book of Common Prayer sentenced by the High Commissioners 10. Deprivation for Non-conformity to the Ecclesiastical Canons by the High Commissioners agreed to be good 11. Deprivation for not Reading the Articles of Religion according to the Statute of 13 Eliz. 12. Deprivation by the High Commissioners for Drunkenness 13. The Church is not void by the Incumbents being Deprivable without Deprivation 14. For an Incumbent to declare his Assent to the Articles of Religion so far as they agree with the Word of God is not that unfeigned Assent which the Statute requires 15. A Church becomes void presently upon not Reading the Articles and there needs not any Deprivation in that Case 16. A Case wherein a Sentence declaratorie for Restitution makes a Nullity in the Deprivation 17. An Appeal from a Sentence of Deprivation prevents the Church's being void pro tempore 18. Vpon Deprivation for meer Laity or Incapacity the Lay-Patron must have Notice ere the Lapse incurrs against him 19. An Incumbent Excommunicated and so obstinately persisting 40 daies is Deprivable 1. DEprivation is a discharge of the Incumbent of his Dignity or Ministery upon sufficient cause against him conceived and proved for by this he loseth the Name of his First Dignity and that either by a particular Sentence in the Ecclesiastical Court or by a general Sentence by some positive or Statute-Law of this Realm So that Deprivation is an Ecclesiastical Sentence Declaratory pronounced upon due proof in the Spiritual Court whereby an Incumbent being legally discharged from Officiating in his Benefice with Cure the Church pro tempore becomes void So that it is in effect the Judicial incapacitating an Ecclesiastical person of holding or enjoying his Parsonage Vicarage or other Spiritual promotion or dignity by an Act of the Ecclesiastical Law only in the Spiritual Court grounded upon sufficient proof there of some Act or Defect of the Ecclesiastical person Deprived This is one of the means whereby there comes an Avoidance of the Church if such Sentence be not upon an Appeal repealed The causes of this Deprivation by the Canon Law are many whereof some only are practicable with us in the Ecclesiastical Laws of this Realm and they only such as are consonant to the Statutes and Common Law of this Kingdom 2. All the Causes of Deprivation may be reduced to these Three Heads 1 Want of Capacity 2 Contempt 3 Crime But more particularly It is evident that the more usual and more practicable Causes of this Deprivation are such as these viz. a meer Laity or want of Holy Orders according to the Church of England Illiterature or inability for discharge of that Sacred Function Irreligion gross Scandal some heinous Crime as Murther Manslaughter Perjury Forgery c. Villany Bastardy Schism Heresie Miscreancy Misbelief Atheism Simony Illegal Plurality Incorrigibleness and obstinate Disobedience to the approved Canons of the Church as also to the Ordinary Non-conformity Refusal to use the Book of Common Prayer or Administer the Sacraments in the order there prescribed the use of other Rites or Ceremonies order form oâ— celebrating the same or of other open and publick Prayers the preaching or publishing any thing in derogation thereof or depraving the same having formerly been convicted for the like offence the not Reading the Articles of Religion within Two months next after Induction according to the Statute of 13 Eliz cap. 12. The not Reading publickly and solemnly the Morning and Evening Prayers appointed for the same day according to the Book of Common Prayer within Two month next after Induction on the Lord's Day the not openly and publickly declaring before the Congregation there Assembled his unfeigned assent and consent after such Reading to the use of all things therein contained or in case of a lawful Impediment then the not doing thereof within one month next after the removal of such Impediment a Conviction before the Ordinary of a wilful maintaining or affirming any Doctrine contrary to the 39 Articles of Religion a persistance therein without revocation of his Error or re-affirmance thereof after such Revocation likewise Incontinency Drunkenness and 40 daies Excommunication To all which might also be added Dilapidation for it seems anciently to have been a Dilapidator was a just cause of Deprivation whether it were by destroying the Timber-trees or committing waste on the Woods of the Church-Lands or by putting down or suffering to go to decay the Houses or Edifices belonging to the same as appears by Lyford's Case as also in the Bishop of Salisbury's Case
consent of Five others of the said Commissioners his Companions and namely which Deprived him It was not sound that the Commissioners were the Natural born Subjects of the Queen as the Statute Enacts that they should be And it was moved That the Deprivation was void 1 Because that whereas the Commission is to them or any Three of them of which the said Bishop to be one amongst others it ought to have been the Sentence of them all according to the Authority given to them which is equal and not of one with the assent of the other 2 Because it is not found that the Commissioners are the Natural born Subjects of the Queen as by the words of the Statute they should be 3. Because the punishment which the Statute provides for those of the Ministry which deprave this Book is to lose the profits of all their Spiritual promotions but for a year and to be Imprisoned by the space of Six months and not to be Deprived till the Second offence after that he had been once committed and therefore to deprive him for the First offence was wrongful and contrary to the Statute But the whole Court for the Form of the Deprivation it is that which is used in the Ecclesiastical Courts which alwaies names the chief in Commission that are present at the beginning of the Sentence and for the other they mention them only as here but of their assent and consent to it and in such cases we ought to give credit to their Form and therefore it is not to be compared to an Authority given at Common Law by Commission And it is to be intended that the Commissioners were the Natural born Subjects of the Queen unless the contrary appear But here at the beginning it is found That the Queen Secundum tenorem effectum Actus praedict had granted her Commission to them in causis Ecclesiasticis and therefore it appeareth sufficiently that they were such as the Statute wills them to be And for the Deprivation they all agreed that it was good being done by Authority of the Commission for the Statute is to be understood where they prosecute upon the Statute by way of Indictment and not to restrain the Ecclesiastical Jurisdiction being also but in the Affirmative And further by the Act and their Commission they may proceed according to their discretion to punish the Offence proved or confessed before them and so are the words of their Commission warranted by the Clause of the Act. And further the Ecclesiastical Jurisdiction is saved in the Act. And all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this Clause in the Act. Vid. Hill 33 Eliz. Rot. 315. 10. Before many Noble-men Archbishops and Bishops and the Justices and Barons of the Exchequer 1 agreed That the Deprivation of Minsters for Non-conformity to the last Canons was lawful by the High Commissioners For by the Common Law the King hath such a power in Causes Ecclesiastical and it is not a thing de novo given by the First of Eliz. For that is Declaratory only c. and the King may delegate it to Commissioners And the King without a Parliament may make Constitutions for the Government of the Clergy and that such a Deprivation ex officio without Libel is good 2. That the Statute of 5 H. 5. c. 4. is to be intended when they proceed upon Libel and not when ex officio Read the Statute 3. When their Petition is Subscribed by a great number with intimation That if the King denies their Suit that many thousands of his Subjects shall be discontented That this is an Offence Finable at discretion and is near to Treason by raising Sedition by Discontent c. Vid. More 's Rep. Trin. 2 Jac. in the Star-Chamber 11. By the Statute of 13 Eliz. cap. 12. it is Enacted That every person c. to be Admitted to a Benefice with Cure except that within Two months after his Induction he publickly Read the said Articles in the same Church whereof he shall have Cure in the time of Common Prayer there with declaration of his unfeigned assent thereto c. shall be upon every such default ipso facto immediately deprived Then follows afterwards a Proviso relating to this clause viz. Provided alwaies That no Title to conferr or Present by Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron Thus the Patron immediately upon such Deprivation may Present if he please and his Clerk ought to be Admitted and Instituted but if he doth not no Lapse incurrs until after Six months after Notice of the Deprivation given to the Patron by the Ordinary who it seems is to supply the Cure until the Patron Present In the last Case of the Lord Dyer 23 El. it was Resolved That where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never Subscribed the Articles before the Ordinary as the Statute of 13 of El. requires Upon Question whether the First Living vacavit per mortem of him or not the Court Resolved That the First Living became vacant by his death and not by accepting the Second because he was never Incumbent of the Second for not Subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the Second Living became void as if they had never been This differs from the Case of not Reading the Articles within Two months after Induction For the not Subscribing the Articles makes that he never was Incumbent of the Second Living and consequently no cause of losing the First but the not Reading the Articles within Two months after Induction doth cause a deprivation of that whereof he was Incumbent For as an Incumbent that without qualification or dispensation doth take a Second Living doth thereby lose the First so the same Incumbent for not Reading the Articles within Two months after his Induction into the Second may lose the Second and thereby lose both viz. the First by taking a Second without qualification or dispensation and the Second for not Reading the Articles as aforesaid whereof he was Compleat Incumbent by Admission Institution and Induction of the Second Living full Two months before he lost it for not Reading the Articles 12. Parker being Parson of a Church was deprived by the High Commissioners for Drunkenness and moved for a Prohibition but it was not granted and he was directed to have Action for the Tithe and upon that the validity of the Sentence shall be drawn in question If a man be Admitted Instituted and Inducted to a Church and afterwards is deprived for that he was Instituted contrary to the course of the Ecclesiastical Law such Sentence of deprivation is void at the Common Law for that it is
Prohibition for that the Law shall decide thereupon it was between Dawes and Huddlestone No Tithes shall be paid in kind without a Custome for Fish taken in the high Sea out of any Parish Hill 14 Car. B. R. between Long and Dircell per Curiam and Prohibition granted accordingly And Justice Jones said that on an Appeal to the Delegates out of Ireland in the Lord Desmond's Case it was Agreed That for such Fish so taken only Personal Tithes are due deductis expensis Likewise no Tithes in kind shall be paid de jure for Fish taken in a Common River which is not enclosed as in a Pond enclosed for that they are Ferae naturae although they are taken by one who hath a severed Piscary there and although the place where they are taken be within the Parish of that Parson who claims them for it is a Personal Tithe in which Tithes ought to be paid deductis Expensis Pasch 15 Car B. R. between Gold and Arthur and others Prohibition was granted where the Suit was for Tithes of Salmon in the River of Exe. Mich. 15 Car. between Whislake and the said Arthur and others the like Prohibition granted on the same matter between other parties And in the Case of a Prohibition it was Resolved That Tithe shall be paid for Fish taken in the Sea which is not within any Parish and they shall be paid to the Parson of the Parish where the Fish is landed Flax pays a Predial Tithe payable when dressed up Coke Mag. Char. 649. The Tithes of Flax are Minutae Decimae Mich. 14 Car. B. R. in Noah Webb's Case Forest-Lands that lie in no Parish or between two Parishes and anciently such are not Tithable by the King or his Patentees but if the Forest be in a Parish and Land therein which is Tithe-Free if the Forest happen to be disforested it shall pay Tithes in kind Crompt Jurisd 52. Bacon Chief Justice at Sarum-Assize the Case was A. Lessee for years of the Earl of H. prayed a Prohibition against the Vicar of L. to stay a Suit in the Ecclesiastical Court for Tithes because the Lands out of which the Tithes were demanded were parcel of the Forest of B. whereof the King was seised in right of his Crown and he and all his Predecessors held the said Land discharged of Tithes and shewed that the King had granted the said Forest to the Earl of Hertford in Fee and so he ought to have them discharged of Tithes In that Case it was held by the Court That it was only a Priviledge annexed to the Crown during the time that the Land was in the Crown but the Court doubted whether the Patentee might have such Priviledge But yet de bene esse the Prohibition was granted If Tithes do lie in any Forest as in the Forest of Windsor Rockingham Sherwood or other Forest which is not any Parish the King shall have them by his Prerogative and not the Bishop of the Diocess or Metropolitan of the Province as some have thought But yet it seems by 22 Ass 25. if there be cause of Suit for such Tithes against the parties who ought to pay the same such Suit might be brought in the Ecclesiastical Court But if a Stranger takes away such Tithes from the Parson or Vicar there for such Trespass the Suit may be in the Temporal Court as the same may be for taking away other goods in the like case Adjudg 15 Car. B. R. Fowl taken by a Faulkner who hawks for his pleasure shall not pay Tithe but if a Fowler kill Fowl and make a profit of them it hath been held that he shall pay a Personal Tithe for them Pasch 15 Car. Adjudg acc Fruits of Trees as Apples Pears c. are Tithable presently upon their gathering and are Predial Tithes for the subtraction whereof the Parishioner is impleadable Stat. 2 Ed. 6. c. 13. Fruits of Trees Apples Pears c. Mast of Oak Beech c. are Predial Tithes Coke Magn Chart. 649. The Fruits of Orchards and Gardens are Tithable in their proper kinds and to be paid when they are gathered unless there be some Modus or Rate-Tithe paid in lieu thereof Furse is Tithable and pays a Predial Tithe unless the Owner thereof can prescribe or prove a Custome of Tithing Milk or Calves of the Cattle on the ground where the Furse grows Mich. 29. Eliz. B. R. Vid. Heath G GArdens are Tithable as other Lands and therefore the Herbs which grow therein pay Tithes in kind Also Plants Seeds Woad Saffron Hemp Rape c. pay Tithes in kind unless the Parson make an Agreement for the same otherwise the Tenth part must be set forth for the Parson when the Owner receives his Nine parts Mich. 8. Jac. C. B. in Baxter's Case Trin. 9 Jac. B. R. The whole Court Glebe is a portion of Land Meadow or Pasture belonging to or parcel of the Parsonage or Vicarage over and above the Tithes If it be Demised by the Parson to a Lay-man it pays Tithe otherwise if he keep it in his own hands For Glebe kept in the Vicars own hands pays no Tithe to the Parson Impropriate it is otherwise if it be in the hands of his Lessee by whom it is Tithable if lett by a Parson Impropriate And although Glebe-Lands are not properly Tithable because Ecclesia Ecclesiae Decimas non debet solvere yet if Glebe-Lands be leased out the Parson the Lessee shall pay the Small Tithes arising out of such Glebe-Lands to the Vicar that hath Small Tithes upon his endowment as in Blinco's Case And yet in that case the Vicar Libelled in the Ecclesiastical Court to have Tithes of the Glebe of the Parson and a Prohibition was granted for that the Glebe shall pay no Tithe Notwithstanding which if a Parson lease his Glebe-Lands and do not withal Grant the Tithes therof the Tenant shall pay the Tithes to the Parson Likewise if a Parson sow his Glebe-Land and then Lease the same the Tenant shall pay the Tithes of this Corn to his Landlord the Parson Yet if a Parson sow his Glebe and die before Severance some have held that his Executors shall not pay Tithes of this Corn. And albeit where Glebe-Lands are leased out by the Parson the Lessee shall as aforesaid pay the Small Tithes thereof to the Vicar that hath the Small Tithes upon his Endowment yet he shall not have the Small Tithes arising upon such of the Parsons Glebe-Lands as the Parson keeps in his own hands Likewise on the other hand it hath been held That the Vicar upon a general Endowment shall not pay Tithes of his Glebe to the Parson or of the Fruits that arise from the same and that for the same reason aforesaid Quia Decimas Ecclesia Ecclessae reddere non debet But the Lessee of the Parsons Glebe shall pay him the Tithes thereof to this purpose the Case was A Parson
had before are Bastards at the Common Law and Muliers by the Civil Law If a Man hath Issue by a Woman and after marry the same Woman the Issue by the Common Law is Bastard and Mulier by the Ecclesiastical Law Likewise if a man espouse a Woman bigg with Child by another Man and within three dayes after she is delivered of Child by the Common Law this is a Mulier and by the Ecclesiastical Law a Bastard If a Woman Elope and hath Issue in Adultery such Issue is a Mulier at the Common Law and a Bastard by the Ecclesiastical Law yet if the Woman continue in Adultery and hath Issue such Issue are Bastards even by the Common Law But by the Law of the Land a man may not be reputed a Bastard who is born after Espousals unless there be some special matter in the Case as aforesaid But if a man who hath a wife doth during her life take another wife and hath Issue by her such Issue are Bastards by both the Laws for the second Marriage is void 20. A Divorce causa Praecontractus doth Bastardize the Issue so also doth a Divorce causa Consaguinitatis likewise if the Divorce be Causa Affinitatis it doth Bastardize the Issue and the Law is the same in case the Divorce be causa Frigiditatis A Man hath Issue a Bastard and after marries the same Woman and hath Issue by her divers Sons and then deviseth all his Goods to his Children Q. whether the Bastard shall take by the devise But if the Mother of the Bastard make such a devise it is clear the Bastard shall take because he is known to be Child of the Mother 21. B. contracted himself to A. afterwards A. was Married to F. and cohabited with him whereupon B. sued A. in the Court of Audience and proved the contract and Sentence was there pronounced that she should Marry the said B. and cohabit with him which she did and they had Issue C. B. and the Father died It was argued by the Civilians that the Marriage betwixt B. and A. was void and that C. B. was a Bastard But it was resolved by the Justices that C. the Issue of B. was legitimate and no Bastard 22. The Case was wherein a Man was divorced causa Fridigitatis and afterwards took another Wife and had Issue it was argued by the Civilians and also by the Justices whether the Issue were Bastard or not it was adjudged that the Issue by the second Wife was not a Bastard For that by the Divorce the Marriage was dissolved à vinculo Matrimonii and each of them might Marry again But admit that the second Marriage was voidable yet it good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue 23. Upon an information in the Castle-chamber in Ireland against the Bishop of K. and C. B. and others that by Practice and Combination and by undue course of proceedings they endeavoured to prove the said C. B. who was ever before reputed a Bastard to be the legitimate or lawful Son and Heir of G. B. Esq to the disherison and defamation of E. B. who was the sole Daughter and Heir of the said G. B. And upon Oier of this cause the Case appear'd to be this viz. About twenty six years before the exhibiting of this Bill the said G. B. had Issue the said C. B. on the Body of one J. D. who during the life of G. B. was not reputed his Wife but his Concubine and the said C. B. for all the time aforesaid was only accounted the natural Son of G. B. but not for legitimate Afterwards viz. sixteen years after the birth of C. B. his Mother being then living G. B. took to Wife a Lady of good Estate and Reputation with the assent of her Friends by whom he had Issue the said E. B. and died After the death of the said G. B. the said C. B. his reputed Son nor his Mother who was yet living said nothing by the space of nine years but at last they practiced and combined with the said Bishop of K. being of their Kin and with many others to prove the legitimation of the said C. B. by an irregular and undue course to the intent to bastardize and disinherit the said E. B. according to which practice and combination the Bishop without any Suit commenced or moved in any of the Kings Temporal Courts or any Writ directed to him to certifie Bastardy or Legitimation in that Case and which is more without any Libel exhibited in his Ecclesiastical Court touching that matter of his own will and pleasure privately and not convocatis convocandis nine years after the death of the said G. B. took the depositions of many Witnesses to prove that the said G. B. twenty nine years before had lawfully Married and took to Wife the said J. D. Mother of the said C. B. and that the said C. B. was the legitimate and lawful Son and Heir of the said G. B. And these depositions so taken the said Bishop caused to be engross'd and reduced into the form of a solemn Act and having put his Signature and Seal to that Instrument delivered the same to C. B. who published it and under colour of that Instrument or Act declared himself to be the Son and lawful Heir of the said G. B. c. And for this practice and misdemeanour the said Bishop of K. and others were censured and thereupon these points were resolved 1. That although all Matrimonial causes have of a long time been determinable in the Ecclesiastical Courts and are now properly within the jurisdiction and cognizance of the Clergy yet ab initio non fuit sic For causes of Matrimony as well as cause Testamentary were heretofore civil Causes and appertaining to the civil Magistrate as is well known to all Civilians until the Christian Emperors and Kings as an honour to the Prelates of the Clergy did grant and allow unto them the cognizance and jurisdiction of these Cases And therefore the King of England who is and of right ever was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his own Dominions although that he allow the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertain to their cognizance yet by the Rules of the Common Law he hath a superintendency over their proceedings with power of direction how they shall proceed and of restraint and correction if they do not proceed duly in some cases as is evident by the Writs of several natures directed to Bishops by which the King commands them to certifie Bastardy Excommunication Profession Accouplement en Loyal Matrimony De admit Clericis de Cautione admittenda c. as also by the Writs of Prohibition Consultation and Attachment upon a Prohibition 2. It was resolved that
Church This double value shall be accounted according to the very or true value as the same may be let and shall be tried by a Jury and not according to the extent or taxation of the Church Co. par 3. Inst cap. 71. And albeit the Clerk be not privy to the Simoniack Contract yet it seems the Patron shall pro hac vice lose his Presentation But the Title of the rightful and uncorrupt Patron shall not be sorscited or prejudiced by the Simoniacal Contract of an Usurper albeit the Clerk be by his presentation admitted instituted and inducted nor entitle the King to present 4. The Church notwithstanding the Admission Institution and Induction becomes void whether the Clerk presented were a party or privy to the corrupt and Simoniacal Contract or not But Sir Simon Degee in his Parson's Counsellor puts the material Question viz. Whether the Clerk that is presented upon a Simoniacal Contract to which he is neither party nor privy be disabled for that turn to be presented by the King to that viz. the same Church In order to the resolution whereof he acquaints us with a Case reported wherein it was adjudged that if a Clerk were presented upon a Simoniacal Contract to which he was neither party nor privy that yet notwithstanding it was a perpetual disability upon that Clerk as to that Church or Living The like in another Case where B. the Church being void agreed with the Patron to give him a certain Sum of Money for the Presentation B. presented C. who knew nothing of the Simoniacal Contract till after his Induction In this Case it seem'd by Warburton Justice that C. was disabled quoad hanc Ecclesiam In which Case it was clear that the grant of the Presentation during the vacancy was meerly void that B. presented as an Usurper that C. was in by the corrupt Contract and that were it not for the same the Patron would not have suffered the Usurpation In further confirmation hereof it is also reported to us that Sir Edward Coke affirmed it hath been adjudged that if a Church be void and a Stranger contracts for a Sum of Money to present one who is not privy to the Agreement that notwithstanding the Incumbent coming in by the Simoniacal Contract is a person disabled to enjoy that Benefice although he obtain a new presentation from the King for that the Statute as to that Living hath disabled him during Life Notwithstanding all which Premises Sir Edward Coke in his Comment upon the said Statute of 31 Eliz. asserts it to have been adjudged in the forecited Case of Baker and Rogers that where the Presentee is not privy nor consenting to any such corrupt Contract there because it is no Simony in him he shall not be adjudged a disabled person within the said Act for the words of the Statute are And the person so corruptly giving c. And so says he it was resolved Mich. 13. Jac. Where the Presentee is not privy nor consenting to any corrupt Contract he shall not be adjudged a disabled person within the Act because it is no Simony in him Coke Inst par 3. cap. 71. Also it was so resolved in Doctor Hutchinsons Case by the whole Court viz. That if a Clerk be presented upon a corrupt Contract within the said Statute although he be not privy thereunto yet his presentation admission and induction are all void within the Letter of that Statute but not within the clause of disability within the same Statute 5. The Contracts which are commonly held corrupt and Simoniacal may be diversified almost into as many kinds as transferences and proprietary negotiations are capable of but those which have been most in practice as appears by the Cases reported in the Law have been by way of unlawful purchasing the next Advowson by Exchanges by Resignation Bonds by Matrimonial compacts by contracts remote and conceal'd from the Presentee by Obligations of an indirect nature and the like To the purposes aforesaid it hath been held Simony for a Parson to promise his Patron a Lease of his Tithes at such a Rent in case he would present another Parson into his Benefice with whom he was to exchange albeit that other was not privy to the Contract he making the Lease after It was likewise held Simony for a Father to present his Son by vertue of a purchase of the next Advowson which he made in the presence of his Son a Clerk when the Incumbent was not like to live by reason of a Sickness whereof he soon after died Otherwise in case the purchase had been made in the absence of the Son as is hereafter mentioned But per Hutt it was held Simony to purchase the next Advowson the Incumbent being sick The like in Winchcombes Case against the Bishop of Winchester and Puleston a Case hereafter often Margined on several accounts where it was held Simony in one Say who was presented upon a Contract which he made with the Patron the Incumbent being then sick for Ninety pound to present him when the Church should be void And as to Resignationbonds Sir Simon Degge affirms That in the case of Jones and Lawrence the sense of the Court was that if a Man be preparing his Son for the Clergy and have a Living in his disposal which falls void before his Son is capable thereof he may Lawfully take a Bond of such person as he shall present to resign when his Son becomes capable of the the Living otherwise in case the Patron take a Bond absolutely to resign upon request without any such or the like cause as for avoidance of Pluralities Non-residence or other such reasonable design The like you have in Babbington and Wood's Case hereafter mentioned So that it seems Bonds and Obligations given and taken upon just and honest grounds to resign are not in themselves Simoniacal Otherwise where ther 's is corruption in the case accompanied with some subsequent Act in pursuance thereof And although presentations made upon Simoniacal Bonds and Obligations are void in Law yet such Bonds themselves though corrupt and Simoniacal are not made void by the Statute of 31 Eliz. 6. B. brought Action against C. upon an Obligation The condition whereof was that whereas the Plaintiff did intend and was about to present the Defendant to the Benefice of Stow if the Defendant at the request of the Plaintiff should resign the same to the hands of the Bishop of London then the Obligation to he void The Defendant demanded Oyer and demurr'd and adjudg'd for the Plaintiff for the resignation might be upon a good intention to prevent pluralities or some other cause and it shall not be intended Simony if it be not specially pleaded and averr'd and Mich. 37. and 38. Eliz. Between Jones and Lawrence it was adjudg'd accordingly and affirmed an Error which the Court viewd and thereupon Judgement was given for the Plaintiff 7.
Catholick Faith or any of the Articles thereof grounded on the word of God 5. By a Proviso in the Act of 1 Eliz. c. 1. no matter or cause shall be adjudged Heresie but such only as hath been so adjudged by the Authority of the Canonical Scriptures and by the first four General Councils or by any other General Council wherein the same was declared Heresie by the express and plain words of the Canonical Scripture or such as shall hereafter be determined to be Heresie by Parliament with the assent of the Clergy in their Convocation as appears by the said Statute the occasion of the making whereof was as suppos'd by reason of an Indictment against certain persons called Lollards upon the Statute of 2 H. 4. c. 15. Whose Opinions were 1. That it was not meritorious to go in Pilgrimage to St. Thomas nor to St. Mary of Walsingham Nor 2 To adore the Image of a Crucifix or of Saints Nor 3 To confess sins to a Priest but to God onley c. 6. Sir Ed. Coke in the third part of his Institutes cap. 5. doth assert that both by the Books at Common Law and by History it doth appear that an Heretick may be convicted before the Archbishop and other Bishops and other the Clergy at a General Synod or Convocation Bract. Lib. 3. fo 123 124. in Concil Oxon. Newburgh l. 2. c. 13. 6 H. 3. Stow. Hol. 203. 2 H. 4. Rot. Parl. nu 29. Sautries Case F. N. B. 269. 2. 1 El. c. 1. And the Bishop of every Diocess may convict any for Heresie and so might have done before the Statute of 2 H. 4. c. 15. For the Diocesan hath Jurisdiction of Heresie and so it was practised in all Q. Elizabeths Reign and accordingly it was resolved by all the Justices in the the Case of Legate the Heretick And that upon a conviction before the Ordinary of Heresie the Writ de Haeretico comburendo did lye Without the aid of the Act of 2 H. 4. c. 15. it seems the Diocesan could Imprison no person accused of Heresie but was to proceed against him by the censures of the Church And now says the Lord Coke in the forecited place In as much as not only the said Act of 2 H. 4. but also that of the 25 H. 8. c. 14. are repealed the Diocesan cannot Imprison any person accused of Heresie but must proceed against him as he might have done before these Statutes by the censures of the Church as it appears by the said Act of 2 H. 4. c. 15. according to Sir Ed. Coke in that place aforesaid where he also saith that no person at this day can be indicted or impeached of Heresie before any Temporal Judge or other that hath Temporal Jurisdiction But every Archbishop of this Realm may cite any person dwelling in any Bishops Diocess within his Province for causes of Hersie if the Bishop or other immediate Ordinary thereunto consent or if that the same Bishop or other immediate Ordinary or Judge do not his duty in punishing the same 7. Again Sir Ed. Coke in the forementioned place affirms that it appears by Bracton Britton Fleta Stanford and all the Books of the Common Law that he who is duly convicted of Heresie shall be burnt to death Mir. c. 4. de Majesty Bract. ubi sup Britt c. 9. Fleta l. 1. c. 35. Reg. F. N. B. 269. But the Ecclesiastical Judge cannot as he says at this day commit the person that is convict of Heresie to the Sheriff albeit he be present to be burnt but must have the Kings Writ De Haeretieo Comburendo according to the Common Law F. N. B. 269. Rot. Par. 2 H. 4. nu 29. Sautries Case Bre. de haeret Combur per Reg. Concil in Parliam The reason Sir Ed. Coke gives wherefore Heresie is so extremely and fearfully punish'd is for that Gravius est aeternam quam Temporalem Laedere Majestatem And Haeresis est lepra animae The party duly convicted of Heresie may recall and abjure his Opinion and thereby save his life but a relapse is fatal And if the Heretick will not says he after conviction abjure he may by force of the said Writ be burnt without abjuration 2 H. 4 Rot. Parl. N. 24. A Writ was issued by the advice of the Lords Temporal in Parliament to the Sheriffs of London and subscribed per ipsum regem concilium in Parliamento by which the Sheriffs were commanded to burn William Sautre who had been before condemned for a relapsed Heretick by the Archbishop of Canterbury Apostolicae sedis Legatum and other Suffragans and all the Clergy of that Province in Concilio suo Provinciali Congregat juris ordine Note 1 Eliz. cap. 1. Proviso that such as have Jurisdiction by Letters Patents shall not have power to Judge Heresie but in such Cases as have been before adjudged c. or such as shall hereafter be ordered judged and determined to be Heresie by the High Court of Parliament of this Realm with the assent of the Clergy in their Convocation as aforesaid Before a man shall be adjudged an Heretick he ought to be convicted by the Provincial Synod for the Common Law doth not take notice what is heresie If an Heretick convict shall after abjuration relapse into the same or any other Heresie and thereof be convict again the Writ De Hoeretico Comburendo may be directed to the Sheriff after the party is delivered by the Clergy unto the secular power And by the Statute of 2 H. 4. c. 15. Every Bishop in his own Diocess might as aforesaid convict a man of Heresie and upon another conviction after abjuration might by the Sheriff proceed unto comburation But that Statute is repealed by the Statute of 25 H. 8. c. 14. vid. co lib. 12. in a Case of Heresie Note 2 Ma. tit Heresie Brook per omnes Justiciarios Baker Hare The Archbishop in his Province in the Convocation may and doth use to convict Heresie by the Common Law and then to put them convicted into Lay-hands and then by the Writ De Haeretico Comburendo they were burnt but because it was troublesome to call a Convocation It was ordained by the Statute 2 H. 4. cap. 15. That every Bishop in his Diocess might convict Hereticks And if the Sheriff was present he might deliver such to be burnt without the Writ aforesaid but if the Sheriff were absent or he were to be burnt in another County then the said Writ ought to be had who are Hereticks vid. 11. H. 7. Book of Entries fo 319. vid. Doctor and Stu. lib. 2. cap. 29. Cosin 48. 2. 1 2. P. M cap. 6. Also 3 F. N. B. fo 269. And the Writ in the Register proves this directly 4 Bracton l. 3. cap. 9. fo 123 124. And it is also true that every Ordinary may convent any Heretick or Schismatick before him pro salute animae and may degrade him
Church-gemote Int. Leges H. 1. c. 8. The Convocation is under the power and Authority of the King 21 Ed. 4. 45. b. Assembled only by the Kings Writ 13 Ed. 3. Rot. Parl. M. 1. vid. Stat. 25 H. 8. c. 19. The King having directed his Writ therein assigning the time and place to each of the Archbishops to the effect aforesaid the Archbishop of Canterbury doth thereupon direct his Letters to the Bishop of London as his Dean Lindw Provin Sec. 1. de Poenis ver Tanquam in Gloss First Citing himself peremptorily then willing him to Cite in like manner all the Bishops Deans Archdeacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the Place at the day in the said Writ prefixed withal directing that one Proctor for every Cathedral or Collegiate Church and two for the other Clergy of each Diocess may suffice In pursuance whereof the Bishop of London directs his Letters accordingly willing them to certifie the Archbishop the Names of all such as shall be so Monished by them in a Schedule annexed to their Letters Certificatory whereupon the Cathedral and Collegiate Churches and the other Churches having Elected their Proctors it is certified to the Bishop who makes due Returns thereof which method is likewise observed in the other Province of York It is said That these Proctors anciently had Place and Vote in the Lower House of Parliament a good expedient for the maintenance and preservation of the Liberties of the Church The Prolocutor of the Lower House of Convocation is immediately at the first Assembly by the motion of the Bishops chosen by that Lower House and presented to the Bishops as their Prolocutor by whom they intend to deliver their Resolutions to the higher House and to have their own House specially ordered and governed His Office is to cause the Clerk to call the Names of the Members of that House as oft as he shall see cause likewise to see all things propounded to be read by him to gather the Suffrages or Votes and the like Trin. 8 Jac. It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1 That a Convocation cannot Assemble without the Assent of the King 2 That after their Assembling they cannot conferr to constitute any Canons without License del Roy. 3 When upon Conference they conclude any Canons yet they cannot execute any of them without the Royal Assent 4 They cannot execute any after Royal Assent but with these Limitations viz. 1 That they be not against the Kings Prerogative 2 Nor against Statute Law 3 Nor against the Common Law 4 Nor against the Customes of the Realm All which appears by 25 H. 8. c. 19. 19. Ed. 3. Title Quare non Admisit 7. 10. H. 7. 17. Merton cap. 9. By 2 H. 6. 13. a Convocation may make Constitutions to bind the Spiritualty because they all in person or by Representation are present but not the Temporalty Q. And 21 Ed. 4. 47. the Convocation is Spiritual and so are all their Constitutions Vid. The Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. By which it appears that they can do nothing against the Law of the Land or the Kings Prerogative 5. The word Convocation and the word Synod are rather words of two Languages than things of two significations for although they have different derivations the former from the Latin the other from the Greek yet in effect they both center in the same thing Convocation à Convocando because they are called together by the Kings Writ It is of very great Antiquity according to Sir Edward Coke who mentions out of Mr. Bede and other Authors and ancient Records such as were nigh a thousand years since and more expresly of one great Synod held by Austins Assembling the Britain Bishops in Council An. 686. And affirms That the Clergy was never Assembled or called together at a Convocation but by the Kings Writ And in the year 727. there was a Convocation of the Clergy called Magna Servorum Dei frequentia It was by the assistance and authority of Ethelbert the first Christian King of Kent that Austin called the aforesaid Assembly of the British Bishops and Doctors that had retained the Doctrine of the Gospel to be held in the borders of the Victians and West-Saxons about Southampton as supposed to which resorted as Mr. Bede says Seven Bishops and many other Learned Divines but this Synod or Convocation suddenly brake up without any thing done or resolved This Assembly was conven'd for determining the time for the Celebration of Easter touching which the Controversie continuing no less than 90 years after was at last concluded at another Convocation purposely called at Whitby by the Authority of Oswy King of Northumberland and whereof the Reverend Cedda newly Consecrated Bishop was Prolocutor and King Oswy himself present at the Assembly Likewise about the year 1172. at Cassils in Ireland a Convocation was held by Authority of King H. 2. soon after he had Conquered that Island which Convocation was for the Reformation of the Irish Church where amongst many other Constitutions it was Decreed That all the Church-Lands and all their Possessions should be altogether free from the Exaction of Secular men and that from thenceforth all Divine things should be handled in every part of Ireland in such sort as the Church of England handleth them Likewise about the year 1175. at London a Synod or Convocation was held at which King H. 2. was present where among other Canons and Constitutions it was both by Authority of the King and Synod decreed That every Patron taking a Reward for any Presentation should for ever lose the Patronage thereof Which together with other Canons then made for the better government of the Church of England were Published by Richard Archbishop of Canterbury with the Kings Assent Likewise a Provincial Synod was held at Oxford by Stephen Langton Archbishop of Canterbury under King H. 3. about the year 1222. for Reformation of the Clergy with many others in subordination to the Laws of the Land One special Priviledge of the Convocation appears by 8 H. 6. cap. 1. All the Clergy from henceforth to be called to the Convocation by the Kings Writ and their Servants and Familiars shall for ever hereafter fully use and enjoy such liberty and Immunity in coming tarrying and returning as the Great men and Commonalty of the Realm of England called or to be called to the Kings Parliament have used or ought to have or enjoy 8 H. 6. In Parliamento Statutum est ut Praelati atque Clerici câ—rumque Famulatus cum ad Synodos accesserint iisdem Privilegiis ac
the dispersing of the Christian Flock doth not undeservedly pass under the name or notion of one of the Rejected Councils To this Assembly resorted 90 Bishops under pretence of Dedicating the Church of Antioch built by Constantine when in truth their principal design was to eject Athanasius out of his Chair and to subvert that Systeme of Faith which was set down in the Nicene Council This Council of Antioch is to be distinguish'd from Five others which Bellarmine reckons Longus also doth name this and mentions other Councils of Antioch But this Council is referr'd to the time of Constantinus and Julius the First Athanasius being restored from Banishment by Constantine the Son of Constantine the Great the Arrians declare it to be unlawful because the same Authority which did eject must restore This matter therefore being referr'd to Pope Julius he Summons the Synod to appear at Rome But the Eusebians chief of the Hereticks that they might avoid this did without much difficulty seduce Constantius to be at the Consecration of the Magnificent Temple built by Constantine the Great at Antioch where were met about 90 Bishops as aforesaid 30 whereof being Arrians the favour and Authority of the Emperour against the double Suffrages of the Orthodox procured the condemning of Restored Athanasius It is said of this Council That they did set forth a Form of Belief so intermixed with Truth and Error that he which is heedful lest he be deceived in his greatest warlness can scarcely be safe for by the omission of what might establish the Truth they weaken that which they undertake to maintain To this Council probably may be referr'd Two other Councils which some report to have been held also at Antioch about the year 348. the former whereof was occasioned by the favour which Julius Bishop of Rome shewed to Athanasius Bishop of Alexandria and other Bishops In the other the Arrians did set forth a new Sum of their Faith which being sent to the Bishops of Italy was refused by them adhering to that of the Nicene Council At Sardis in Illyricum in the year 351. by the Command of Constantius and his Brother Constans a great National Council was Assembled consisting of 376 Bishops whereof Three hundred were from the West and Seventy six from the East from Thirty five Provinces in all The Three hundred Western Bishops confirmed the Nicene Creed to this end That Athanasius who was Banished Rome for the space of Three years should be restored to his Place at Alexandria but the other Seventy six Arrians meeting at Philippolis confirmed Arrianism under the Title of the Council of Sardis In this Council by reason of the Arrian Faction and from thence forward were added different Affections to different Opinions In this Council which is commonly called an Appendix to the First Nicene Council were ratified 21 Canons under Pope Julius At Sirmium in Illyria in the year 356. by Command of the Emperour Constantius a Council was held where were present besides Eastern Three hundred Western Bishops and upwards for the hearing and deciding the Cause of Photius who complained to the Emperour that he was unjustly condemned at the Synod of Sardis although he had preached that Christ was meer man and inferiour to his Mother This Council at Sirmium so groaned under the Arrian Tyranny of Constantius that the Supremacy and Presidentship of Pope Liberius dared not to appear Photius Bishop of Sirmium having renewed the Heresies of Sabellius and Samosatenus Of this Council saith Longus there is nothing extant besides Three Forms of Belief which are found in Binius In this Synod there was a hot Dispute between Basilius Bishop of Ancyra an Arrian Heretick and the said Photius a Sabellian Heretick At Millain in the year 355. at the instance of the Arrians a Council consisting of Three hundred of the Occidental Bishops at the command of Constantius was Assembled who after that the Emperour Constans was slain by Magnentius had the whole Sovereignty both of the East and West in his hands This Council was conven'd partly for ratification of the Sentence pronounced against Athanasius at Tyrus and partly for subversion of the Nicene Faith but prevailed in neither In this Council the Emperour himself was President Liberius being Pope I saith the Emperour in this Council am an Accuser of Athanasius The Western Catholick Bishops there present for there were few Eastern promised to consent to the Arrians if they would first subscribe to the Nicene Creed But Valence and Vrsacius the chief Leaders of that Faction withstood them Then followed the degrading of the Bishops and the corrupt Ecclesiastical determination This was effected especially that they might allure Liberius Bishop of Rome either by Gifts or Threats to their way who is reported thus Heroically to have Answered the Emperour who had judg'd him to be Banished to Thrace and offered him the charge of his Journey viz. Thou hast robbed the Churches of the Earth and now offerest to me Condemned an Indigent an Alms Go first and become a Christian thy self At Ariminum in Italy about the year 363. was held a National Council consisting of more than Four hundred Western Bishops under the Emperour Constantius in the 22 d year of his Reign at the motion of the Arrians to whose Opinions the said Emperour was flexible enough but the major part of the said Bishops rejecting the motions made in favour of the Arrian Error touching the Son of God adhered closely to the Nicene Faith This Ariminum is it seems Famous for Two Councils the one Orthodox and lawfully called which is that aforementioned The other Heretical and Tyrannical craftily called by the Arrians under the notion of the Council held at Ariminum that this False one might extinguish the True one whereof the greater part determined the Nicene Creed punctually to be observed and the Sons equality with the Father in Essence to be asserted The Decrees of the Synod at Sirmium to be rejected and Vrsacius and Valence with the Arrians their Followers to be Excommunicated At Seleucia in Isauria which lies between Lycania and Cilcia whence Paul and Barnabas sailed to Cyprus Act. 13. 4. was a Council of 160 Oriental Bishops held the same year wherein the said National Council of Ariminum was held viz. An. 363. The business of this Council procured as the former by the Arrians was much prevented by a Contest arising touching precedency of Debates as whether the matter of Faith or the Lives of such as were to be accused should first fall under Examination At this time there being Convened at Ariminum 600 Bishops according to Bellarmine out of the Chron. of Jerome of which the Eastern Heterodox being overpowr'd both in Number and Arguments by the Orthodox the Emperour Constantius removes them unto Seleucia in Isauria aforesaid Here the Acatians altogether reject Consubstantiality the Semi-Arrians admit it in their sense In this diffention
condemning the Heresies of Pelagius and Coelestius concerning the power of Mans Nature not supported by the Grace of God and Free Will of Man to do good of it self as also to inhibit Appeals to Bishops beyond Sea on pain of being secluded from the Communion of all African Bishops At Carthage in the year 402 under Honorius and Theodosius the Second a National Council of 217 Bishops was assembled which continued for the space of Six years The business of this Council was prevented by a Controversie happening between them and the Bishops of Rome who successively endeavoured but not successfully to perswade the African Bishops that they were under the Sovereignty and Jurisdiction of the Bishops of Rome to whom this Council would not allow of any Appeal from the Bishops of Africa At Bagaia in Africa about the year 433. certain Donatists to the Number of 310 assembled themselves in Council chiefly for the deposition of Maximinianus Bishop of Bagaia whom they Deposed and Accursed because he had renounced their Heresie and had recovered many others from the Error of that way At Ephesus in the year 434. and in the Eighth year of the Reign of Theodosius the Second by some called Theodosius the Younger was a General Council assembled against the Heretick Nestorius Bishop of Constantinople which Council consisted of above Two hundred Bishops by Command from the Emperour By which Council Nostorius for his Heresie in denying the Son of the Virgin Mary to be God and consequently the Personal Union of the Divine and Humane Nature of Christ was Banished to Oasis This was the first General Council of Ephesus promoted by Celestine the First wherein Two hundred Bishops as aforesaid condemned Nestorius together with Carisius his flattering Presbyter who instead of Two Natures acknowledged divers Persons in Christ and therefore pleaded that the Blessed Virgin Mary should be styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only and not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In this Council Cyrillus of Alexandria is recorded President whom Nestorius being piously and brotherly invited to a better Opinion proudly contemned and having craftily allured John of Antioch to his party Anathematiz'd him and the Council who had formerly Anathematiz'd him The matter being related to the Emperour and throughly understood Cyrillus and his are cleared but Nestorius with his party is Banished as aforesaid to Oasis a Sandy Habitation where like another Cain says a Modern Historian roving here and there Blaspheming at length his Tongue being consumed and eaten up by Worms he breathed out his last There are it seems two Copies of this Council the First observing Eight the Second Thirteen Canons which are comprehended in the Anathema's of Cyrillus The Massilianites termed also Euchites and Enthusiasts were condemned by this Council and thereby the integrity of the Nicene Creed confirmed At Ephesus under Theodosius the Second was likewise a Particular Council assembled by Flavianus Bishop of Constantinople who condemned Eutyches an Abbot of Constantinople for Affirming That in Christ after the Union of the Divine and Humane Natures there were no longer Two Natures which absurd Opinion Flavianus damned as Heretical So that the occasion of this Second Council of Ephisus An. 449. was this Eutyches an Archimandrite of Constantinople who after Manes and Apollinaris denied the Flesh of Christ to be like ours but affirmed that falling from heaven like the Rays of the Sun it penetrated the Virgins womb And so he denied that Two Natures were in Christ Incarnate but asserted that his Flesh was changed into his Divinity for which he was as aforesaid condemned by Flavianus Patriarch of Constantinople and Eusebius Bishop of Doril and others their Associates yet by the help of Chrysaphius the Eunuch and Eudoxia the Empress whom he had seduced he prevailed with Theodosius that the matter might be determined by a Famous Synod for which reason this at Ephesus by the Emperours Authority was called where 128 Bishops met Dioscorus of Alexandria being President one so full of Eutychianism that Eutyches is absolved and the reclaimers forced says the Historian to subscribe by Club-Arguments Flavianus opposing it was so suriously trodden upon that three days after he died besides many very Learned Bishops discharged of their Places yet not long after all this was dashed in pieces by the most Famous Council of Chalcedon At Berytus in Phoenicia was held a Council about this time where in the Cause of Ibas Bishop of Edessa whom Dioscorus had deposed was revived and himself justified and absolved At Agatha in France was a Council held wherein nothing was more remarkable than that they had liberty to meet together by the Command of Alaricus King of Gothes who at that time had the Sovereignty in that parr of France called Gallia Norbonensis whence it appears That Councils both General and National were in all Countreys Convened by the Authority of Sovereign Princes At Chalcedon in Bythinia in the year 455. and in the Fourth year of Marcianus the Emperour was a General Council at which was present in person the Emperour and 630 Bishops and Reverend Fathers from most parts of the World In this Council Dioscorns Bishop of Alexandria together with Eutyches and Juvenalis Bishops at Jerusalem was condemned as an Heretick for absolving the Heretick Eutyches in the Council at Ephesus and acting other Crimes whereof he was then accused In this Council it was Ordained That men should believe that the Natures of Christ albeit that they were united yet were they not confounded as Eutyches had Heretically affirmed Also in this Council it was Ordained That Anatelius Bishop of Constantinople and his Successors should have the chief Dignity next unto the Chair of Rome This Council was called by the said Emperour Martianus against the said Eutyches Abbot of Constantinople and his Champion Dioscorus of Alexandria the suppositious Acts of the Council held at Ephesus were condemned by this Council those of Ephesus being in favour of Eutyches who affirmed one only Nature to be in Christ viz. his Divine Nature after his Incarnation It is not clear or certain who was President of this Council of Chalcedon excepting the Emperour and Judges Moderators The matters thereof were for the most part by favouring parties between Leo the First of Rome and Anatholius Patriarch of Constantinople At Ravenna in the Sixth Century was a Council Assembled by occasion of the Schism happening on the Election of Symmachus to the See of Rome whose Competitor was Laurentius afterwards made Bishop of Nuceria In Symmachus his time were no less than Six Councils held at Rome all Convened by Authority of Theodoricus King of Gothes who then Reigned in Italy and all of little importance otherwise than the Endeavours that then were for the Supremacy whereat they aimed At Valentia in Spain were assembled Two Councils called Herdense and Valentinum both very obscure Councils there being in the one but Eight Bishops present
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
Diocess to which the Court viz. Jones and Whitlock answered That at the Common Law a Bishop cannot Cite a man out of his Diocess And that the Statute of 23 H. 8. inflicts a punishment c. and Whitlock said That a Bishop hath not power of Jurisdiction out of his Diocess but to Absolve him being Excommunicate 2 Upon the Statute of 5 Eliz. cap. 23. because the Case of Defamation is not within the Statute and then the Statute Enacts That it shall be void To which the Court answered That he ought to averr that by way of Plea and so also said the Clerks of the Court That he ought to have Sued a Habeas Corpus and upon Return thereof to Plead But the Plea was admitted de bene esse and the party bailed 16. No Letters of Excommunication are to be received in stay of Actions if they are not under the Seal of the Ordinary for an Excommunication under the Seal of the Commissary is not to be allowed in such case If the principal cause of the Action for which the Excommunication was be not comprized within the Letter of the Certificate it is not to be allowed that so it may appear to the Court that the Ecclesiastical Court had Jurisdiction of the Cause for which he was Excommunicated The Certificate ought to be Vniversis Ecclesiae Filiis or to the Justices of the Court where the Suit is to be stayed Also the Excommunication certified ought to be duly dated that is the Certificate ought to contain the day of the Excommunication A Certificate by the Archdeacon is sufficient by the Custome And upon an Excommunicato Capiendo if it appears that the Excommunication was by an Archdeacon of some certain place it ought also to appear either expresly or by implication in the Certificate that the matter for which the Excommunication was was within his Jurisdiction otherwise it is not good 17. F. being apprehended upon an Excommunicato Capiendo and the Significavit being That he was Excommunicated for not answering Articles and not shewing what they were his discharge was prayed for the Incertainty thereof and per Curiam it is not good and therefore was Bailed Coke 22 E. 4. is That a man was Excommunicated for certain Causes not good and so Co. 5. Arscots Case Schismaticus inveteratus is not good Excommunication nor shall be allowed in the cause of him who Excommunicates him 5 E. 3. quod fuit concessum per Doderidge 18. In Trollops Case it was Resolved That the Official cannot certifie Excommunication for none shall do that but he to whom the Court may write to assoil the party as the Bishop and Chancellor of C. or O. and for that if a Bishop certifie and die before the Return of the Writ it shall not be received but the Successor shall do it and one Bishop shall not certifie an Excommunication made by a Bishop in another Court but a Bishop after Election before Consecration may and so may the Vicar-General if it appears that the Bishop is in Remotis agendis also that the Suit and the Cause are to be expressed in the Certificate that the Temporal Court may judge of the sufficiency and if it be insufficient as if a Bishop certifie an Excommunication made by himself in his own Cause the Court may write to absolve him 19. H. was condemned in the Chancellors Court of Oxford in Costs and had not paid an Excommunicato Capiendo being awarded upon a Significavit returned and delivered here in Court according to the Statute of 5 Eliz. cap. 23. He was Arrested thereupon Resolved The Excommunication was good though the Significavit doth not mention any of these Causes in the Statute but it is for other Causes but if any Capias with Proclamations and Penalties be therein awarded the Penalties be void unâ—ess the Significavit express it to be for one of the Causes mentioned â—n the Statute 20. In another Case where a man was Excommunicated upon a Sentence in the Delegates for Costs in Castigatione Morum 21 Jac. a Capias with Proclamations issued and he being taken Quoad the Excommunicato Capiendo pleads That the Offence and Contempt was pardoned by the General Pardon of 21 Jac. It was Agreed That the Pardon did not discharge the Costs of the party which were taxed before the Pardon It was moved there That as the Costs were not taken away so no more was the Excommunication which is the means to enforce them to be paid But Resolved That this Excommunication before the Pardon is but for a Contempt to the Court and all Contempts in all Courts are discharged by the Pardon wherefore the same was discharged and for the payment of the Costs the party is to have new Process 21. A man was taken upon an Excommunicato Capiendo and the Significavit did not mention That he was Commorant within the Diocess of the Bishop at the time of the Excommunication and for that cause the party was discharged And in an Action where an Excommunication was pleaded in Bar and the Certificate of the Bishop of Landaph shewed of it but did not mention by what Bishop the party was Excommunicated it was for that reason adjudged void 22. Upon a Contract Sentence in the Ecclesiastical Court was That the Defendant should marry the Plaintiff he did not do it for which cause he was Excommunicated The Defendant appealed to the Delegates by whom the Cause was remitted to the Judge à Quo who Sentenced him again where he was also Excommunicated again for non-performance of the Sentence He appealed to the Court of Audience and then had 〈◊〉 He was taken by a Capias Excom upon the first Excommunication upon a Habeas Corpus it was Resolved That the Absolution for the latter had not purged the First Excommunication quia Ecclesia decepta fuit 2 That the Appeal did not suspend the Excommunication although it might suspend the Sentence 23. In Weston and Ridges Case it was Resolved That upon an Information exhibited in the Ecclesiastical Court for laying of violent hands upon a Clerk and Costs there given against the Defendant for which he was Excommunicated for not paying them a Prohibition should issue forth because it was not at the Suit of the party and Costs are not grantable there upon an Information 24 In the Case of Prohibitions it was Resolved Mich. 8 Jac. That if a man be Excommunicated by the Ordinary where he ought not as after a General Pardon c. And the Defendant being negligent doth not sue a Prohibition but remains Excommunicate by Forty daies and upon Certificate in Chancery is taken by the Kings Writ de Excommunicato Capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what Remedy the party hath who is wrongfully Excommunicated to which it was Answered he hath Three Remedies viz. 1
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