to their Brethren and answer to the Accusations brought against them But suppose they will not and others of the Brethren say they ought not and so fall into Heats and Disputes among themselves about it and make new Parties and Divisions Is not this an admirable Way of preserving Peace and Order and Discipline in a Church And I am as certain this is not the Way of Christ's appointing as I am that God is the God of Order and not of Confusion and that when Christ left the Legacy of Peace to his Church he left a Power in some to see his Will performed But these things can never be objected against us for all are Members of the same Body and are governed by certain and known Rules and if any be guilty of open Violation of it the Way is open to accuse and prosecute them and if they be found guilty the Censures of the Church will render them uncapable of doing it in such a Station or at least to bring them to Confession of their Fault and Promise of future Amendment And now I leave any one to judge whether the Parochial Clergy are not under greater and better Discipline than the Teachers of the separate Congregations II. But the great Complaint of such Men is That we want Parochial and Congregational Discipline so that Faults should be examined and punished where they have been committed but instead of that all Matters are drawn into the Ecclesiastical Court and there Causes are managed so as looks rather like a Design to punish Men in their Purses than for their Faults and the Delays are so great that the Court it self seems to be designed for Penance and grows very uneasie even to those who are the Members of our Church And some think that the proceeding against Men upon Articles of Enquiry not so agreeable to the Rights and Liberties of Mankind In answer to this I shall consider 1. The Proceedings upon Enquiry at Visitations 2. The Method of Proceeding in the Ecclesiastical Courts 3. The Inconveniencies of parochial Discipline 1. As to Enquiries at Visitations They were grounded upon one of the main Pillars of our Law viz. an ancient immemorial Custom founded upon good Reason In the first Canons that ever were made in this Church under Theodore Archbishop of Canterbury the second is That every Bishop is to look after the Government of his own Diocess and not to invade anothers And that in so doing they went about their Diocesses in order to an Enquiry and Correction of Miscarriages is evident from the Council under Cuthbert Archbishop of Canterbury Can. 3. 25. the first Council at Calechyth Can. 3. the Constitutions of Odo Archbishop of Canterbury Can. 3. and the Canon of Edgar Can. 3. But in these Saxon times the Visitations were annual which were found inconvenient and therefore in the Norman times the Archdeacons were taken into a part of the Jurisdiction under the Bishop and visited those years the Bishop did not But we meet with no Archdeacons with any kind of Jurisdiction in the Saxon times we read indeed sometimes of the Name of Archdeacons but they had nothing to do in the Diocess but only attended the Bishop at Ordinations and other publick Services in the Cathedral Lanfranc was the first who made an Archdeacon with Jurisdiction in his See And Thomas first Archbishop of York after the Conquest was the first who divided his Diocess into Archdeaconries and so did Remigius Bishop of Lincoln his large Diocess into Seven Archdeaconries saith H. of Huntingdon And so it was with the rest of which there were two Occasions 1. The laying aside the Corepiscopi in the Western Parts as assuming too much to themselves 2. The publick Services which the Bishops were more strictly tied to as the King's Barons in the Norman times Which was the Reason not only of taking in Archdeacons but likewise of Archpresbyters or Rural-Deans who had some Inspection into the several Deanaries and assisted the Bishop in such things as they were appointed to do and then came in the other Ecclesiastical Officers as Vicars General Chancellors Commissaries c. for we read not of them here at all in the Saxon times but about the time of Hen. II. the Bishops took them for their Assistance in Dispatch of Causes when the King required their strict Attendance on the publick Affairs in the Supreme Court of Parliament 2. As to the Method of Proceeding in the Ecclesiastical Courts it is no other than hath been continued here without Interruption till of late years ever since the Conquest For the Consistory-Court and the Rules of Proceeding there were established by a Law in the time of William the First As far as I can find by King Edward's Laws c. 4. the Bishops did then proceed by the Ecclesiastical Laws although they then sat in the County-Court but this caused so much Confusion that William by a general Consent and a Charter directed to all the People of England doth separate the Ecclesiastical from the Temporal Courts which was enrolled as good Law 2 R. 2. upon occasion of a Suit of the Dean and Chapter of Lincoln and therefore the Charter of Remigius Bishop of Lincoln is more mentioned than others but the same was to all the Bishops and Counties of England as appears by other Copies of it Thus the consistory-Consistory-Court was first established as a distinct Court from the county-County-Court which it was not in the Saxon times for then the Bishop sate with the Civil Magistrate in the same Court and Ecclesiastical Causes were first heard and decided there It seems the People wer very unwilling to go to a new Place and therefore the Law is inforced with severe Penalties for Contempt And those who object against the Reasonableness of the Method of Proceeding in those Courts must reflect upon some of the wisest Nations in the World who have gone upon the same Grounds in all that have received the Civil Law and upon some of the greatest Courts at this time in the Kingdom as the Chancery and Admiralty which go by the same Fundamental Rules As to any Objections which arise from the personal Faults of those who are imployed in them that reaches I am afraid to all Courts and it ought to be the Work and Business of those who look after them to do what in them lies to reform them that others Faults may not be laid at their Doors 3. But for those who would have a Parochial or Congregational Discipline set up as much better and more effectual I shall desire them to consider that since Matters of Discipline are such as that in them the Reputation and Interest of Persons is very much concerned they ought not to be left to Arbitrary Proceedings of any Persons but they ought to be managed by the certain and common Rules of Justice since every Man hath a Right to defend himself when he is accused And unless there be known and
Right because the Fee-simple abideth in him and his Chapter and so may a Dean and Master of an Hospital And these are called Bodies Politick by Littleton That the Exercise of the Bishop's Power may be restrained by ancient Compositions as is seen in the two Ancient Ecclesiastical Bodies of St. Paul's and Litchfield Concerning which it is to be observed That where the Compositions are extant both Parties are equally bound to observe their parts Thus by the Remisness and Absence of the Bishops of Litchfield from their See by going to Chester and then to Coventry the Deans had great Power lodged in them as to Ecclesiastical Jurisdiction there After long Contests the matter came to a Composition A. D. 1428. by which the Bishops were to visit them but once in Seven Years and the Chapter had Jurisdiction over their own Peculiars So in the Church of Sarum the Dean hath very large Jurisdiction even out of the Bishop's Diocess which makes it probable to have been very ancient but upon contest it was settled by Composition between the Bishop Dean and Chapter A. D. 1391. But where there are no Compositions it depends upon Custom which limits the Exercise although it cannot deprive the Bishop of his Diocesan-Right 4. The Delegate Jurisdiction which was committed to the several Officers of the Bishops Courts and the Manner of their Proceedings is founded upon immemorial Custom In the Saxon times I find no Delegation of Ecclesiastical Jurisdiction for the Bishops sate in person in the county-County-Courts and there heard Ecclesiastical Causes as appears by the Charter of H. 1. when he pretended to restore the Saxon Laws c. 7. But William I. had settled the consistory-Consistory-Court by as good a Law as any was made at that time distinct from the county-County-Court and required all Ecclesiastical Causes to be there heard and his Son H. 1. did but make a shew of restoring the Saxon Laws and the former Law came to be generally received and so Mr. Selden yields that it grew to be a general Law which shews that it obtained the Force of a Law by Consent as well as by Authority The consistory-Consistory-Courts being thus settled and Numbers of Causes there depending and the Bishops being then by H. 2. in the Constitutions of Clarendon strictly tied to Attendance upon the Supreme Courts of Judicature with other Barons there came a Necessity of taking in other Persons with a delegated Power to hear Causes and to do such other Acts of Jurisdiction as the Bishops should appoint For it was still allowed that Iure communi the Jurisdiction was in the Bishop but Iure speciali in auxilium Episcopi it might be delegated to others And so it hath been here received and not only here but it hath been the general Practice of Christendom As to the manner of Proceeding in the Ecclesiastical Courts it is the same in all Parts and built on the same Grounds with those of our Courts of Equity and Admiralty which are as different from those of the Common Law 5. The settling Parochial Rights or the Bounds of Parishes depends upon an ancient and immemorial Custom For they were not limited by any Act of Parliament nor set forth by special Commissioners but as the Circumstances of Times and Places and Persons did happen to make them greater or lesser In some places Parishes seem to interfere when some place in the middle of another Parish belongs to one that is distant but that hath generally happened by an Unity of Possession when the Lord of a Manor was at the Charge to erect a new Church and make a distinct Parish of his own Demesns some of which lay in the Compass of another Parish But now care is taken by Annual Perambulations to preserve those Bounds of Parishes which have been long settled by Custom But the Bounds of Parishes is not allowed to belong to the Ecclesiastical Jurisdiction II. The next Foundation of Law is a General Practice and Allowance i.e. when things of themselves do not oblige by the Authority of those that made them yet being generally received and allowed they thereby become Law to us This we have in an Act of Parliament 25 H. 8. c. 21. wherein it is said That the People of England are only bound to such Laws as are properly their own being in Subjection to no Foreign Legislative Power But were not many things here received for Laws which were Enacted by a Foreign Authority as the Papal and Legatine Constitutions True say they but it is not by Virtue of their Authority but by the free Consent of the People in the Use and Allowance of them And so they are not observed as the Laws of any Foreign Prince Potentate or Prelate but as the customed and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent and Custom and no otherwise So that here we have a full and express Declaration by Parliament That such Canons as have been received and allowed by ancient Custom make a part of our Laws and continue to oblige provided that they be not repugnant to the King's Prerogative nor to the Laws Statutes and Customs of the Realm as it is expressed in another Act of the same Parliament 25 H. 8. c. 19. The Ecclesiastical Laws saith my Lord Coke are such as are not against the Laws of the Realm viz. the Common Law and the Statutes and Customs of the Realm And according to such Laws the Ordinary and other Ecclesiastical Iudges do proceed in Causes within their Conusance So that by the Acknowledgement of this great Oracle of the Common Law there are Laws Ecclesiastical in force among us and Causes to be judged by those Laws and Officers appointed by the Law to proceed according to them The Ecclesiastical Laws and Ordinances are owned by the Statute 27 H. 8. c. 20. 32 H. 8. c. 7. 35 H. 8. c. 19. after the Commission appointed for the Review of them 1 E. 6. c. 2. The Ecclesiastical Courts are appointed to be kept by the King's Authority and Process to be issued out in his Name in all Suits and Causes of Instance between Party and Party where the Causes are particularly mentioned which belong to those Courts and no Alteration is made in them as to their powers but only that the Process should be in the King's Name But some persons in our Age who love to be always starting Difficulties to humour such as bear ill Will to our Constitution have 〈…〉 although this Act was 〈…〉 M. 2. yet that Repeal 〈…〉 â—ac 25. n. 48. therefore 〈…〉 Stat. 1 E. 6. is 〈◊〉 But the plain and short Answer is this That there was no need of any Debate about the Repeal of the Statute of E. 6. after the first of Q. Eliz. because then the Statute 25 H. 8. c. 20. was expresly revived wherein the Bishops were impowered to act as before they might have done according to the Laws and
and the more Ancient the more Suspicious But the Lord Chancellor and three Chief Judges declared That by the Common Law of England every Bishop in his Diocess and the Archbishops in Convocation may make Canons to bind within the Limits of their Jurisdiction 3. The subordinate Jurisdiction which was lodged in the Bodies of the Clergy resident in Cathedral Churches and of Archdeacons in the several Diocesses I cannot find either of these to have had any Jurisdiction here before the Conquest neither were there any Courts of Justice out of the several Counties before for all Causes were transacted in the county-County-Courts and Sheriffs Turns and Appeals lay from them to the Supreme Judicature of the King and the Lords But this doth not hinder but these Courts may be founded on the Law of England And so the original Jurisdiction which of Right belonged to the Bishop might by degrees and a gradual Consent come to be committed as to some parts to the Bodies of Cathedral Churches and to the Archdeacons who are saith my Lord Coke Sixty in England We are told in a late Case of Woodward and Fox That there are Archdeaconries in England by Prescription which have no Dependency on the Bishop but are totally exempt And for this Godolphin is cited who refers to the Gloss on the Legatine Constitutions f. 27. where we read of some Archdeacons having a customary and limited Iurisdiction separate from the Bishop for which a Prescription lies But this is only for some special Iurisdiction as the Archdeacon of Richmond for Institutions which came first by Grant from the Bishops but that not being to be produced they insist upon Custom and Prescription as the Deans and Chapters do where the Ancient Compositions are lost But none who understand the Ancient Constitution of this Church can suppose either of them to have been Original since the Right to the Jurisdiction of the Diocess was in the Bishop before there were here either Archdeacons or Chapters with Jurisdiction In the Case of Chiverton and Trudgeon it was declared That an Archdeacon might have a peculiar Jurisdiction as to Administration c. as the Dean of St. Paul's had at S. Pancras and so the Archdeacon of Cornwall as to Wills In the case of Gastril and Iones the Chief Justice declared That the Archdeacon is the Bishop's Officer and his Authority subordinate to the Bishops and granted by them but if special Custom be pleaded that must be well proved to which Dodderidge agreed But we must distinguish between Archdeaconries by Prescription for which I can find no Foundation being all derived by Grant from the Bishop and Archdeacons having some kind of Iurisdiction by Prescription which others have not which cannot be denied All the Power which the Archdeacons have by virtue of their Office is per modum scrutationis simplicis as Lyndwood speaks tanquam Vicarius Episcopi Whatever Power they have beyond this is not Iure communi but Iure speciali and depends either upon Grant or Custom which the Gloss on the Legatine Constitutions calls a limited Iurisdiction The Archdeacon's Court is declared by the Judges in Woodward ' s Case to have been time out of Mind settled as a distinct Court from which there lies an Appeal to the Bishop's Court by the Statute 24 H. 8. c. 12. And so the Archdeacon's Jurisdiction is founded on an immemorial Custom in Subordination to the Bishops As to Deans and Chapters I observe these things 1. That although Ecclesiastical Bodies in Cathedrals were very ancient yet we read not of any Jurisdiction peculiar to themselves during the Saxon times My Lord. Coke saith There were Chapters as the Bishop's Council before they had distinct possessions And by their Books he saith it appears that the Bishops parted with some of their Possessions to them and so they became Patrons of the Prebends of the Church Such were London York and Litchfield 2. That several of our Chapters were founded and endowed by the Bishops since the Conquest Such was that of Salusbury by Osmund out of his own Estate as appears by his Charter and the Confirmation of H. 2. So was that of Lincoln by Remigius who removed the See from Dorchester thither and placed there a Dean Treasurer Praecentor and Seven Archdeacons as Henry of Huntingdon saith who lived near the time And in following times those of Exeter and Wells were settled as Dean and Chapter for they were Ecclesiastical Bodies before but not under that Denomination 3. That some had the legal Rights of Dean and Chapters as to Election of Bishops and Confirmation of Leases c. but were a Monastick Body consisting of Prior and Convent Such were Canterbury Winchester Worcester after the Expulsion of the Secular Canons for the Monks not only enjoyed their Lands but were willing enough to continue the Name of Dean among them As at Canterbury after Dunstan's time Agelmothas is called Dean in Worcester Wolstan is called Dean when he was Prior and Winsius upon the first Change is said to be placed loco Decani by Florence of Worcester At Norwich Herbert the Bishop founded the Prior and Convent out of his own Possessions in the time of William II. and they became the Chapter of the Bishop by their Foundation Now as to these it is resolved in the Dean and Chapter of Norwich's Case That when the King transferred them from a Prior and Convent the Legal Rights remained the same And in Hayward and Fulcher's Case the Judges declared That an Ecclesiastical Body may surrender their Lands but they cannot dissolve their Corporation but they still remain a Chapter to the Bishop And it was not only then delivered but since insisted upon in a famous Case That it was the Resolution of the Iudges That a Surrender cannot be made by a Dean and Chapter without Consent of the Bishop because he hath an Interest in them 4. That H. 8. endowed some as Chapters to new erected Bishopricks as Chester Bristol Oxford c. 31 H. 8 9. 34 H. 8. 17. and united others as Bath and Wells and Coventry and Litchfield 33 H. 8. 30. 34 H. 8. 15. 5. That where the Custom hath so obtained there may be a Legal-Chapter without a Dean as in the Diocesses of S. David's and Landaff where there is no other Head of the Chapter but the Bishop but they must act as a distinct Body in Elections and Confirmations of Grants by the Bishops 6. That by the Ancient Custom of England there are sole Ecclesiastical Corporations as well as aggregate A sole Ecclesiastical Corporation is where a single Person represents a whole Succession and under that Capacity is impowered to Receive and to Convey an Estate to his Successors As Bishops Deans Archdeacons Parsons c. But Parsons and Vicars are seized only in Right of the Church but as to a Bishop he may have a Writ of
Ecclesiastical Cases Relating to the DUTIES and RIGHTS OF THE Parochial Clergy STATED and RESOLVED According to the PRINCIPLES OF Conscience and Law By the Right Reverend Father in GOD EDWARD Lord Bishop of Worcester LONDON Printed by I. H. for Henry Mortlock at the Phoenix in St. Paul's Church-Yard 1698. To the Reverend CLERGY OF THE DIOCESE OF WORCESTER My Brethren THE following Discourses do of Right belong to You the Substance of them being contained in what I delivered to You in several Times and Places in the Course of my Visitations In which I endeavoured to lay open the Nature and Dignity of your Function the Rules you are to observe in the Discharge of it and to state and resolve the most Important Cases which Relate to your Duties and Rights according to the Principles both of Law and Conscience For I observed that some had spoken very well of the General Nature of the Ecclesiastical Function without a particular Regard to the Limitations of the Exercise of it by our Laws Others had endeavoured to give Advice and Counsel in Point of Law who meddle not with the Obligation of Conscience And therefore I thought it necessary to joyn both these together that you might have a clear and distinct View of your Duties in both Respects For in a Matter of Positive Institution where only the General Duties are prescribed in Scripture and the Bounds of the Exercise of them depend upon the Laws of the Land I could not see how any Person could satisfie himself in the Discharge of his Duty without a Regard to both For the Care of Souls in General is a Matter of wonderful Weight and Importance and can never be sufficiently considered by those who are concerned in it But no Man among us takes upon him an Indefinite Care of Souls without Regard to Persons or Places for that would produce Confusion and endless Scruples and Perplexities of Conscience about the Nature and Obligation to Particular Duties Which cannot be prevented or removed without a right understanding the different Respect all that have taken our Holy Function upon them do stand in both to the Church in General and to that Particular Cure of Souls which they are admitted to The best way I know to represent them is to consider the Case of Dominion and Property and how far the Vniversal Obligation of Mankind to promote each others Good is consistent with the Care of their own and Families Welfare Adam had in himself the Entire and Original Dominion over all those Things which after became the Subject of particular Property when his Posterity found it necessary to make and allow several Shares and Allotments to distinct Families so as they were not to incroach or break in upon one another But the Law of Nature did not prescribe the Way and Method of Partition but left that to Occupancy or Compact And so the Heads of Families upon their Settlement in any Countrey had a twofold Obligation upon them the first was to preserve the Interest of the whole Body to which they still were bound and were to shew it upon such Occasions as required it The next was to take particular Care of these Shares which belonged to themselves so as to improve them for their Service and to protect them from the Invasion of others And Although this Division of Property was not made by any Antecedent Law yet being once made and so useful to Mankind the Violation of it by taking that which is anothers Right is a manifest Violation of the Law of Nature I do not think that the Distribution of Ecclesiastical Cures for the greater Benefit of the People is of so strict a Nature because the Matter of Property doth not extend to this Case in such a manner But since an Vniversal Good is carried on by such a Division far better than it could be without it there is an Obligation lying on all Persons who regard it to preserve that Order which conduces to so good an End And I cannot see how any Persons can better justifie the Breach of Parochial Communion as such than others can justifie the Altering the Bounds of Mens Rights and Properties because they apprehend that the common Good may be best promoted by returning to the first Community of all things If our Blessed Saviour or his Holy Apostles in the first founding of Churches had determined the Number of Persons or fixed the Bounds of Places within which those who were ordained to so holy a Function were to take care of the Souls committed to them there could have been no Dispute about it among those who owned their Authority But their Business was to lay down the Qualifications of such as were fit to be imployed in it to set before them the Nature of their Duties and the Account they must give of the Discharge of them and to Exhort all such as under took it to a Watchfulness and Diligence in their Places but they never go about to limit the Precincts within which they were to Exercise the Duties incumbent upon them When Churches were first planted in several Countries there could be no such things expected as Parochial Divisions for these were the Consequents of the General spreading of Christianity among the People As is evident in the best Account we have of the Settlement of the Parochial Clergy among us after Christianity was received by the Saxons Which was not done all at once but by several Steps and Degrees It cannot be denied by any that are conversant in our Histories that the Nation was gradually converted from Paganism by the succesful Endeavours of some Bishops and their Clergy in the several Parts of England Not by Commission from one Person as is commonly supposed but several Bishops came from several Places and applied themselves to this Excellent Work and God gave them considerable Success in it Thus Bizinus did great Service among the West Saxons and Felix the Burgundian among the East-Saxons and the Northern Bishops in the Midland-Parts as well as Augustin and his Companions in the Kingdom of Kent And in these Midland-parts as Christianity increased so the Bishops Sees were multiplied Five out of One and placed in the most convenient Distances for the further inlarging and establishing Christianity among the People The Bishops were Resident in their own Sees and had their Clergy then about them whom they sent abroad as they saw cause to those Places where they had the fairest Hopes of Success And according thereto they either continued or removed them having yet no fixed Cures or Titles All the first Titles were no other than being entred in the Bishops Register as of his Clergy from which Relation none could discharge himself without the Bishop's Consent But as yet the Clergy had no Titles to any particular Places there being no fixed Bounds of Parishes wherein any Persons were obliged to be Resident for the better Discharge of their Duties This State of an Vnfixed and
will be the diligent Labours and the exemplary Lives of the Clergy in it But if Men will not regard their own or the Churches Interest in this matter if they will break their Rules in such a manner as to dishonour God and the Church and themselves by it then you are to consider the next thing I was to speak to which is II. What Authority is given to us for the punishing Offenders in our Diocesses by the Ecclesiastical Law of this Realm For this we are to consider That our Authority herein is not derived from any modern Canons or Constitutions of this Church altho' due Regard ought to be shewed to them but from the ancient Common Law Ecclesiastical in this Realm which still continues in force For as there is a Common Law with respect to Civil Rights which depends not on the Feudal Constitutions altho' in many things it be the same with them but upon ancient Practice and general Consent of the People from Age to Age. So I say there is a Common Law Ecclesiastical which altho' in many things it may be the same with the Canon Law which is read in the Books yet it hath not its force from any Papal or Legatine Constitutions but from the Acceptance and Practice of it in our Church I could easily shew if the time would permit that Papal and Legatine Constitutions were not received here altho' directed hither that some Provincial Constitutions never obtained the Force of Ecclesiastical Laws but my business is to shew what did obtain and continue still to have the Force of such Ecclesiastical Laws among us By the Statute of 25 H. 8. c. 19. it is declared That such Canons Constitutions Ordinances and Synodals Provincial being already made which be not contrariant nor repugnant to the Laws Statutes and Customs of this Realm nor to the Damage or Hurt to the King's Prerogative Royal shall now still be used and executed as they were afore the making of this Act c. It 's true a Review was appointed but such Difficulties were found in it as to the shaking the Foundations of the Ecclesiastical Law here that nothing was ever legally established in it and therefore this Law is still in force In the Statute 25 H. 8. c. 21. it is said That this Realm Recognizing no Superiour under God but the King hath been and is free from Subjection to any Man's Laws but only to such as have been Devised Made and Observed within this Realm for the Wealth of the same or to such other as by the Sufferance of the King and his Progenitors the People of this Realm have taken at their free Liberty by their own Consent to be used amongst them and have bound themselves by long Use and Custom to Observance of the same not as to the Observance of the Laws of any Foreign Prince Potentate or Prelate but as to the Customs and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent Custom and none otherwise All that I have now to do is to shew what Authority the Bishops had over the Clergy by the Ancient Ecclesiastical Law of this Realm and what Censuâ—es they were liable to for some particular Offences I. By the Ecclesiastical Law the Bishop is Iudge of the Fitness of any Clerk presented to a Benefice This is confessed by the Lord Coke in these Words And the Examination of the Ability and Sufficiency of the Person presented belongs to the Bishop who is the Ecclesiastical Iudge and in the Examination he is a Iudge and not a Minister and may and ought to refuse the Person presented if he be not Persona idonea But this is plain to have been the Ancient Ecclesiastical Law of this Realm by the Articul Cleri in Edw. II. time De Idoneitate Personae praesentatae ad Beneficium Ecclesiasticum pertinet Examinatio ad Iudicem Ecclesiasticum ita est hactenus usitatum fiat in futurum By the Provincial Constitutions at Oxford in the time of Hen. III. the Bishop is required to admit the Clerk who is presented without Opposition within two Months dum tamen idoneus sit if he thinks him fit So much time is allowed propter Examinationem saith Lyndwood even when there is no Dispute about Right of Patronage The main thing he is to be examined upon is his Ability to discharge his Pastoral Duty as Coke calls it or as Lyndwood saith whether he be commendandus Scientia Moribus As to the former the Bishop may judge himself but as to the latter he must take the Testimonials of others and I heartily wish the Clergy would be more careful in giving them by looking on it as a Matter of Conscience and not meerly of Civility for otherwise it will be impossible to avoid the pestering the Church with scandalous and ignorant Wretches If the Bishop refuses to admit within the time which by the Modern Canons is limited to Twenty eight Days after the Presentation delivered he is liable to a Duplex Querela in the Ecclesiastical Courts and a Quare impedit at Common Law and then he must certifie the Reasons of his Refusal In Specot's Case it is said That in 15 Hen. 7. 7 8. all the Iudges agreed that the Bishop is Iudge in the Examination and therefore the Law giveth Faith and Credit to his Iudgment But because great Inconveniencies might otherwise happen the general Allegation is not sufficient but he must certifie specially and directly and the general Rule is and it was so resolved by the Judges That all such as are sufficient Causes of Deprivation of an Incumbent are sufficient Causes to refuse a Presentee But by the Canon Law more are allowed In the Constitutions of Othobon the Bishop is required particularly to enquire into the Life and Conversation of him that is presented and afterwards that if a Bishop admits another who is guilty of the same Fault for which he rejected the former his Institution is declared null and void By the Canon Law if a Bishop maliciously refuses to admit a fit Person he is bound to provide another Benefice for him but our Ecclesiastical Law much better puts him upon the Proof of the Cause of his Refusal But if the Bishop doth not examine him the Canonists say it is a Proof sufficient that he did it malitiosé If a Bishop once rejects a Man for Insufficiency he cannot afterwards accept or admit of him as was adjudged in the Bishop of Hereford's Case If a Man brings a Presentation to a Benefice the Bishop is not barely to examine him as to Life and Abilities but he must be satisfied that he is in Orders How can he be satisfied unless the other produce them How can he produce them when it may be they are lost What is to be done in this Case The Canon is express That no Bishop shall institute any to a Benefice
who hath been Ordained by any other Bishop for if he Ordained him himself he cannot after reject him because the Law supposes him to have examined and approved him except he first shew unto him his Letters of Orders and bring him a sufficient Testimony of his foâ—mer good Life and Behaviour if the Bishop shall require it and lastly shall appear upon due Examination to be worthy of the Ministry But yet in Palmes and the Bishop of Peterborough's Case it was adjudged That no Lapse did accrue by the Clerk's not shewing his Orders for the Bishop upon his not coming to him again collated after six Months But the Court agreed That the Clerk ought to make Proof of his Orders but they differed about the manner of their Proof Anderson said The Bishop might give him his Oath But if a Proof were necessary and the Clerk did not come to make Proof it seems to me to be a very hard Judgment II. The Bishop by the Ecclesiastical Law is to visit his Diocess and to take an account of the Clergy how they behave themselves in the Duties of their Places By the eldest Canons I can find the Bishops Visitation is supposed as a thing implied in his Office whereby he is obliged to look after the good Estate of his whole Diocess and especially of the Clergy in it In the time of Hubert Arehbishop of Canterbury in the beginning of King Iohn's time Care is taken in the Canons then made That Bâ—shops should not be burdensom to the Clergy in the Number of the Attendants in their Visitations which then were Parochial and the Number allowed of Twenty or Thirty Horse was too heavy for the Clergy to bear And therefore by degrees it was thought fit to turn that Charge into a Certainty which was the Original of Procurations By the Fourth Council of Toledo the Bishop was to visit his whole Diocess Parochially every Year The Gloss saith if there were occasion for it and that the Bishop may visit as often as he sees cause but if he be hindered the Canon saith he may send others which is the Original of the Arch-Deacon's Visitation to see not only the Condition of the Churches but the Lives of the Ministers The Council of Braga in the latter end of the Sixth Century makes this the first Canon That all Bishops should visit their Diocesses by Parishes and there should first examine the Clergy and then the People and in another Canon he was required to receive only his Cathedraticum i. e. a certain Sum in lieu of Entertainment which came to be setled by Prescription The Council of Cavailon in France A. D. 831. fixed no Sum but desired the Bishops to be no Burdens to the Clergy in their parochial Visitations Lyndwood saith the Ancient Procuration here was a Day and Nights Entertainment which after came to be a customary Payment But however it was paid it is an evident Proof of the Right of the Bishops Visitations by the Ancient Ecclesiastical Law and by such a Custom as is allowable by the Rules of our Common Law III. There are some Faults which make the Clergy liable to Deprivation by Virtue of the Ecclesiastical Law which was here received I shall name only some of them and conclude these being sufficient for my present purpose I. Excessive Drinking All drinking ad Potus aequales was absolutely forbidden to Clergymen on pain of Suspension after Admonition not only by a Synodical but by a Provincial Constitution under Edmund Archbishop of Canterbury The Canon Law saith in that case ab Officio vel Beneficio suspendatur But our Constitution is more severe à Beneficio Officio The Council of Oxford not only strictly forbids all Clergymen whatever tends to Gluttony and Drunkenness but it requires the Bishops to proceed strictly against those who are guilty according to the Form of the General Council i. e. the Lateran 4. viz. by Admonition first and then Suspension Lyndwood complains That this was not so much looked after as it should be because it brought no Profit I hope that Reason will not hold among those who pretend to Reformation which will be very defective if it extend not to our Lives as well as our Doctrines For there can be no greater Reproach than to see those loose and dissolute in their Conversations who think it their Honour to be Ministers of a Reformed Church It was a stinging Reflection upon our Church by the Archbishop of Spalato who was no very strict Man himself That he saw nothing Reformed among us but our Doctrines I hope there was more of Satyr than of Truth in it for I do not question but there were many then as there are now of Exemplary Lives and Unblameable Conversations but if there be any others it will be the more shame not to proceed against them since even before the Reformation the Canons were so strict and severe in this matter In the Council at Westminster in Henry II. time under Richard Archbishop of Canterbury all Clergymen are forbidden going into Taverns to eat or drink unless upon Travelling and the Sanction of this Canon is aut cesset aut deponatur The same was forbidden in the Council at York in the time of Richard I. in the Council at London under Hubert in the time of King Iohn And since the Reformation the same Canon is renewed That no Ecclesiastical Persons shall at any time other than for their honest Necessities resort to any Taverns or Ale-houses And there have been Instances of the Severity of our Ecclesiastical Censures against Drunkenness in Clergymen In 8 Iac. Parker was deprived of his Benefice for Drunkenness and moved for a Prohibition but it was denied him In 9 Iac. another was deprived for the same Fault and the Judges at Common Law allowed the Sentence to be good No doubt there are other Instances but we had not known of these if they had not been preserved in Books of Reports II. Incontinency Lyndwood saith Those who are proved to be guilty of it are ipso Iure privati but he thinks a Declaratory Sentence of the Ecclesiastical Judges necessary for the Execution of it Since the Reformation we have Instances of Deprivation for Adultery in our Law Books One 12 Eliz. another 16 Eliz. a third 27 Eliz. These are enough to shew that the Ecclesiastical Law is allowed by the Judges of Common Law to continue in sufficient Force for Deprivation in this Case III. Simony Which is the Name given by the Ecclesiastical Law to all Contracts for Gain in the disposing or obtaining any Ecclesiastical Promotion or Ministry It is true these do not come up to the very Sin of Simon Magus which related to the immediate Gifts of the Holy Ghost but because the whole Ministerial Office in all the parts of it especially the Cure of Souls is of a Spiritual Nature and
all Bargains are so repugnant to the Design of it therefore the Ecclesiastical Law hath fixed that detestable Name upon it For all Contractus non gratuiti in these things savour of turpe Lucrum and tend to bring in turpe Commercium into the Church which would really overturn the whole Design of that Ministry which was designed for the Salvation of Souls And therefore it was necessary that when Persons had received by the Favour of Temporal Princes and other Benefactors who were Founders of Churches such Endowments as might encourage them in their Function that severe Laws should be made against any such sordid and mischievous Contracts And such there were here in England long before the excellent Stat. of 31 Eliz. c. 6. although it seems the Force of them was so much worn out as to make that Statute necessary for avoiding of Simony which is there explained to be Corruption in bestowing or getting Possession of Promotions Ecclesiastical In a Council at London under Lanfranc in the Conqueror's time Simony was forbidden under the Name of Buying and selling of Orders And it could be nothing else before the Churches Revenue was setled But in the time of Henry I. Ecclesiastical Benefices were forbidden to be bought or sold and it was Deprivation then to any Clergyman to be convicted of it and a Layman was to be Out-lawed and Excommunicated and Deprived of his Right of Patronage And this was done by a Provincial Synod of that time In the Reign of Henry II. it was decreed That if any Person received any Money for a Presentation he was to be for ever deprived of the Patronage of that Church and this was not meerly a Provincial Constitution but two Kings were present Hen. II. and his Son and added their Authority to it This was not depriving a Man of his Free-hold by a Canon as a Learned Gentleman calls it for here was the greatest Authority Temporal as well as Ecclesiastical added to it But we are told these Canons were of as little Effect as that of Othobon which made all Simoniacal Contracts void but some of the most judicious Lawyers have held that Simony being contractus ex turpi causâ is void between Parties All that I aim at is to shew that by our old Ecclesiastical Law Simoniacus incurred a Deprivation and Disability before the Stat. 31. Eliz. and therein I have the Opinion of a very Learned Judge concurring with me IV. Dilapidations By which the Ecclesiastical Law understands any considerable Impairing the Edifices Woods and Revenues belonging to Ecclesiastical Persons by Virtue of their Places For it is the greatest Interest and Concernment of the Church to have things preserved for the Good of Successors and it is a part of common Iustice and Honesty so to do And the Lord Coke positively affirms That Dilapidation is a good Cause of Deprivation And it was so resolved by the Judges in the Kings Bench 12 Iac. Not by Virtue of any new Law or Statute but by the old Ecclesiastical Law For which Coke refers to the Year-Books which not only shew what the Ecclesiastical Law then was but that it was allowed by the Common Law of England and we are told that is never given to change but it may be forced to it by a New Law which cannot be pretended in this case And by the Old Constitutions here received the Bishops are required to put the Clergy in mind of keeping their Houses in sufficient Reparations and if they do it not within two Months the Bishop is to take care it be done out of the Profits of the Benefice By the Injunctions of Edw. VI. and Queen Elizabeth all Persons having Ecclesiastical Benefices are required to set apart the Fifth of their Revenue to Repair their Houses and afterwards to maintain them in good condition V. Pluralities By the Ecclesiastical Law which was here received the actual receiving Institution into a second Benefice made the first void ipso Iure and if he sought to keep both above a Month the second was void too Lyndwood observes That the Ecclesiastical Law had varied in this matter And it proceeded by these Steps which are more than Lyndwood mentions I. It was absolutely forbidden to have Two Parishes if there were more than Ten Inhabitants in them because no Man could do his Duty in Both Places And if any Bishop neglected the Execution of it he was to be Excommunicated for Two Months and to be restored only upon promise to see this Canon executed II. The Rule was allowed to hold as to Cities but an Exception was made as to small and remote Places where there was a greater Scarcity of Persons to supply them III. If a Man had Two Benefices it was left to his Choice which he would have but he could not hold both This kind of Option was allowed by the Ecclesiastical Law then in force IV. That if he takes a second Benefice that Institution is void by the Third Council of Lateran under Alexander 3. V. That by taking a second the first is void which is the famous Canon of the Fourth Lateran Council VI. That if he were not contented with the last but endeavour to keep both he should be deprived of both And this was the Ecclesiastical Law as it was declared in our Provincial Constitutions But the general Practice was to avoid the former according to the Lateran Council These were very severe Canons but that one Clause of the Pope's Dispensing Power made them to signifie little unless it were to advance his Power and Revenue For when the Dispensing Power came to be owned the Law had very little Force especially as to the Consciences of Men. For if it were a Law of God how could any man dispense with it unless it were as apparent that he had given a Power in some Cases to Dispense as that he had made the Law Those Casuists are very hard put to it who make Residence Iure Divino and yet say the Pope may dispense with it which at last comes only to this That the Pope can authoritatively declare the sufficiency of the Cause so that the whole matter depends upon the Cause whether there can be any sufficient to excuse from Personal Residence It is agreed on all hands that the habitual Neglect of a Charge we have taken upon our selves is an evil thing and that it is so to heap up Preferments meerly for Riches or Luxury or Ambition but the main Question in point of Conscience is What is a sufficient Cause to justifie any Man's breaking so reasonable and just a Rule as that of Residence is It cannot be denied that the eldest Canons of the Church were so strict and severe that they made it unlawful for any Man to go from that Church in which he first received Orders as well as to take another Benefice in it and so for any
Church That no Man can serve two Masters c. but all their Reasons were not of this sort For the Council of Toledo speaks home That one Man cannot perform his Duty to more than one Charge To the same purpose the Sixth Council at Paris and withal That it brings a Scandal on the Christian Church and an Hinderance to Publick Worship and the Good of Souls and savours too much of a worldly Mind which are weighty Arguments The only considerable thing on the other side is That the Bishops are to take care that the Places be duly supplied but whether it be done by Parson Vicar or Curate is not material But this will not hold For 1. the Care of Souls is committed personally to him that doth undertake it And a Regard is had to the Qualifications of the Person for such a Trust by the Patron that presents and the Bishop who admits and institutes the Person so qualified 2. The old Canons were very strict as to personal Residence so as to fix them in their Cures from which they could not go away when they pleased which they called Promissionem stabilitatis Our Saxon Canons are clear as to the personal Cure Can. Egbert 1. 4 6. Populo sibi commisso and no Presbyter could leave his Cure and go to another only for Honour or Profit Can. 13. And none could go from one Bishop to another without his Diocesan's Leave Concil Herudford c. 5. Egbert de Eccles. Instit. p. 97 100. And when the Bishop gives Institution he commits the Care of Souls to the Incumbent and not meerly the Care that Divine Offices be there performed But yet it is well observed by Aquinas That if the having more Benefices than one were a thing evil in it self it could in no case be dispensed with but there are some Actions which in general are irregular yet in some cases may be justified especially if they be extraordinary as to Publick Service and Usefulness c. And to the same purpose Cajetan speaks but he saith The Cases that make it lawful must relate to a Publick and not a Private Good but he mentions these things which excuse from Residence 1. Lawful Impediments as to Health c. 2. Publick Service And others say a Geometrical Proportion ought to be observed in the Distribution of Ecclesiastical Benefices and not an Arithmetical i. e. A Regard ought to be had to the Merits and Capacities of Persons as a Commander hath more Pay than many common Souldiers but this reaches only to the Value and not to the Number of Benefices But the Question still remains Whether a Legal Dispensation take not off the Obligation in Point of Conscience since it is allowed by Law and the Curate appointed by the Bishop who committed the Cure of Souls to him In answer to this we must consider 1. That the Law proposes in Dispensations very allowable Ends as Publick Service Incouragement of Learning Reward of Merit and therefore Doctors by Favour have not the Privilege which others have and in case of Incompetency as it was then judged no Legal Dispensation was needful 2. Some Ancient Canons took care of the Supply of the Place by competent Persons and in that case abated the Rigour of the Canon For Sirmondus saith in the Canon of the Council of Nantz against Pluralities this Clause was added Unless he hath Presbyters under him to supply the Duties of his Place And the same Clause is in Regino l. 1. c. 254. and Regino puts it among the Articles of Enquiry as to the Clergy If any had more Churches than one without Presbyters to assist him And in their old Admonition to them at Visitations it is to the same purpose but in others it is left out Thomassin is of Opinion That the former Enquiry related to those who had Chapels and not to more Churches because then there were none that had Titles upon anothers Benefice but these Words are express as to more Churches It 's true there were no such Titles then for a Title in the old Canon Law was the Relation which a Clergyman stood in to the Bishop of his Diocess being one of his Clergy and so the Greek Canonists understand a Man 's not being ordained without a Title and not having two Churches i. e. not to have Relation to two Diocesses and so sine Titulo is without being owned by some Bishop and this was that which they thought ought to be strictly observed and to which purpose many Canons were made both ancient and later and if any deserted their Bishop they were liable to Deprivation Afterwards the Word Title came to be applied to parochial Churches but there were some who found out that the Ancient Canons had another Sense Thence in the Council of Placentia in the Canon Sanctorum Dist. 70. c. 2. it was decreed That one might have two Churches in the same Diocess but not two Preferments in several Cathedrals And in the Council of Clermont A. D. 1095. the Reason is given because according to the Canons no Man could have-two Titles and every one was bound to hold to the Title to which he was first ordained But after all the Council of Nantz shews plainly that more parochial Titles were then allowed if well provided for by such persons as the Bishop of the Diocess approved Now this very much alters the State of the case for then the Obligation is Real and not Personal 3. It was agreed by the Ancient Canons That where there was an Incompetency of Maintenance they allowed an Union for support now that is but the Bishop's Act in joyning what had been divided supposing a sufficient Subsistence And a reasonable Distance with the Bishop's Allowance hath the same Equity i.e. the Bishop's Act may unite two small Benefices for a Support not by a perpetual Union but so long as he sees cause which our Law doth still allow under such a Value But it is rather a Dispensation than an Union for the Rights continue distinct In the Court of Rome there were Prerogative Unions ad Vitam which were very scandalous and are owned by the best Canonists to be destructive of all Order and invented to defeat the Canons against Pluralities But the Unions which the Law allows are only those where two distinct Benefices are made one for a competent Subsistence and then if the Union be reasonable the Dispensation within due Distance is so too Balsamon saith In the Greek Church Pluralities are not forbidden if they be near and under the same Bishop but they did not allow the same Man to be under two Bishops In the Capitulars that Clause is added That no Man shall have more Livings than one si Facultas suppetit if it affords a reasonable Subsistence And therefore in case of Incompetency of Maintenance of a good Provision for Curates and of
looked on Tithes in general as due to the Church as appears by very many of their Ancient Charters but they thought they did very well when they appropriated them to Monasteries of their own Erection or others as they thought fit But this Humour took so much among the Norman Nobility and served so many Purposes of Honour and Devotion as they thought besides Reason of State that the parochial Clergy were reduced to so poor a Condition that Alexander IV. complained of it as the Bane of Religion and Destruction of the Church and as a Poison which had spread over the whole Nation And it must be very scandalous indeed when the Pope complained of it For the Monks that were able generally got their Appropriations confirmed in the Court of Rome 2. There was a Competency to be settled on the parochial Clergy by the Bishops Consent which was required in order to the confirming an Appropriation as may be seen in Multitudes of them in the Monasticon besides those which are preserved in the Churches Registers Sometimes the Endowment is expressed and at other times it is reserved in the Bishop's power to do it as he sees Cause But the Bishops were either so remiss in those Times or the Monks so powerful at Rome that the poor Vicars fared so hardly that in the time of H. 2. Alexander III. sent a Reprimand to the Bishops for favouring the Monks too much and the Clergy too little and therefore requires the Bishops to take care that the Vicar had a competent Subsistence so as to be able to bear the Burden of his Place and to keep Hospitality This was directed to the Bishop of Worcester for it seems so long since the poor Vicars here were hardly provided for And yet I have seen several Forms of Appropriations made by the Bishops here after the Conquest wherein there is a twofold Salvo one for the Bishop's Right and another for a sufficient Maintenance for the Curate although the Church were appropriated ad communem usum Monachorum as of Wolstan Roger and of William in the time of Hen. II. when Alexander III. lived and of Walter de Grey Sylvester c. But it seems where a competent Subsistence had been decreed the Monks took the first Opportunity to lessen it which occasioned another Decretal in the Canon Law wherein any such thing is forbidden without the Bishop's Consent In other Places they pleaded Custom for it thence came another Decree of the Lateran Council to void all such Customs by whomsoever introduced where there was not a competent Subsistence for him that served the Cure The Monks were still refractary in this matter and because the Bishops had Power to refuse any person presented by the Monks unless they did consent to such a reasonable Allowance as the Bishop thought fit therefore they grew sullen and would not present in which Case another Decretal was made to give the Bishop Power to present And after all Clement V. De Iure Patron c. 1. reinforced the former Decretals and injoyned the Diocesans in the strictest manner not to admit any person presented to a Cure where the Church was appropriated unless sufficient Allowance were made by the Bishop's Consent and Approbation and all Custom and Privileges to the contrary are declared to be void But how far doth this hold among us now since the Appropriations are become Lay-Fees and the Bishop's Power is not mentioned in the Statute of Dissolution To this I shall give a clear Answer but I doubt not satisfactory to all Parties concerned For as Necessity and Power so some Mens Interest and Reason live very near one another 1. The Statute of Dissolution leaves all matters of Right as to persons interested just as they were before For by the Surrender the King was to have the Monasteries and Tithes in as large and ample a manner as the Abbots then had them in Right of their Houses and in the same State and Condition as they then were or of Right ought to have been And so res transit cum suo onere But this is not all For there is an Express Salvo for all Rights Claims Interests c. of all Persons and Bodies Politick So that if by the Law of England there was such an Antecedent Right in the Vicar to his Allowance and in the Bishop to assign it it is not taken away by this Statute nor any other 2. By the Law of England the Bishop had a Right to provide a competent Maintenance for supplying the Cure upon an Appropriation We are told by an unquestionable Authority in point of Law that 9 Car. 1. this Point was brought before the Kings Bench in the Case of Thornburgh and Hitchcot The Vicar complained that the Church was appropriated and that he wanted a competent Maintenance a Prohibition was prayed but denied upon this Reason That the Vicar had Reason for his Suit and that the Ordinary might compel the Impropriator to make it greater because in all Appropriations that Power was reserved to the Ordinary And so in the Year-Books it is allowed That the Ordinary may increase or diminish the Vicar's Portion 40 E. 3. Cas. 15. f. 28. By our Provincial Constitutions the Bishop is to take care that the Vicar have a competent Allowance which at that time was set at Five Marks but Lyndwood observes that as the Price of things rose so the Allowance was increased and in Stipendiaries it was then advanced to Eight or Ten Marks which according to Sir H. Spelman's Computation comes to above Sixty Pounds per Annum But some have told us That by some old Statutes even beneficed Persons were not by Law to have above Six Marks per Annum for this was the Sum allowed to Parish Priests which is so gross a Mistake in any that pretend to Law or Antiquity that it is to be wondred how they could fall into it The Truth of the Case was this the parochial Chaplains or Priests were complained of 36 E. 3. n. 23. that they could not be gotten to attend after the Plague but at excessive Rates upon this a Provincial Constitution was made extant in the Parliament Rolls wherein they are obliged to demand no more than Six Marks But who were these Parish-Priests Not such as had the legal Endowments but those who depended on the Good-Will of the Parson or People and were hired to officiate in Chapels of Ease or to perform Offices for the Dead which were so frequent at that time And these were called Annual Chaplains or Masse Chaplains and were distinguished from Domestick Chaplains who officiated in great Mens Houses in their private Oratories and from Beneficed Persons as appears by many Constitutions But whatever was understood by the Act of Parliament then it was repealed 21 Iac. 1. 28. 3. The Law of England as to a competent Subsistence for the Vicars or