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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A61536 A discourse concerning bonds of resignation of benefices in point of law and conscience by ... Edward Lord Bishop of Worcester. Stillingfleet, Edward, 1635-1699. 1695 (1695) Wing S5572; ESTC R7708 38,719 132

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incroach upon them by Papal Provisions Cum igitur à primâ Christianitatis Fundatione in Angliâ tali fuerint hactenus progenitores nostri gavisi libertate quod decedentibus Ecclesiarum Rectoribus Ecclesiarum Patroni Personas idoneas eligentes ad easdem Diocesanis praesentaverunt ab eisdem Ecclesiarum Regimini praeficiendas These are words of great Weight and do plainly shew that the Right of Patronage consisted in the Nomination of Fit Persons to the Bishop of the Diocese for any vacant Places but that the Bishops were if they approved them to put them into the Possession of them In the time of Innocent III. the King wrote to the Pope that the Nobility and Bishops of England did insist upon it as their Right by the Ancient Custom to build Churches on their own Lands and the Pope yielded it to the Laity provided that they had the Consent of the Bishop of the Diocese and that the Rights of former Churches were not prejudiced thereby But saith Mr. Selden they challenged it without Licence What to do To build Churches on their own Lands but not a word of putting-in any Incumbents by their own power without the Bishop's Consent and Approbation Nay it appears that they could not build Churches on their own Lands without the Bishops Allowance Mr. Selden would fain have it believed That the Right of Presentation to the Bishop of the Diocese came in by the Canon Law about A. D. 1200. But the Insinuations of that kind as they are frequent in his Book of Tythes so they do shew his want of Skill or Ingenuity at that time as much as any one part of it But I need go no farther than this Letter of the Nobility to the Pope who were extremely jealous of their Rights of Patronage and yet they challenged nothing thereby but a Right of Nomination of a Fit Person to the Bishop of the Diocese not a word of Investiture or Collation by the Patron which Mr. Selden talks of He doth not deny That after A. D. 1200 it was the undoubted Law of England for the Patrons to present to the Bishops But I say it was the Law of England before ever the Decretals were made it was the Original and Fundamental Law of the English Church and as Ancient as the Right of Patronage In the same Epistle they desire the Pope to leave them to their ancient Liberty which was Personas idoneas praesentare But who is to be Judge of the Fitness of the Persons For that we have a full Declaration of the Ancient Law and Custom of England in Artic. Cleri c. 13. De Idoneitate Personae praesentatae ad Beneficium Ecclesiasticum pertinet Examinatio ad Iudicem Ecclesiasticum ita est hactenus usitatum fiat in posterum Upon which my Lord Coke saith That the Examination of the Ability and Sufficiency of the Person belongs to the Bishop who is the Ecclesiastical Iudge and in this Examination he is a Iudge and not a Minister and may and ought to refuse the Person presented if he be not Persona idonea And that this was no new Law appears by the words That it had been hitherto so used and should be so for the time to come And so Coke truly saith that this Act was but a Declaration of the Common Law and Custom of the Realm So that the Bishops Power of Examining and Iudging the Fitness of the Person presented is a part of the Common Law of England 15 H. 7. 8. It is declared by all the Judges That the Bishop in the Examination of a Clerk is a Iudge and not a Minister And if he misbehaves himself he is to be punished as a Iudge 18 H. 7. Keilway saith That the Bishop may refuse for Insufficiency and is to give notice to the Patron It was Resolved by the Court in Specot ' s Case That the Court is to give Credit to the Bishop acting Iudicially but then it is said That the Plea must be special and certain And so Coke saith that in a Quare Impedit brought against the Bishop for Refusal of his Clerk he must shew the Cause of his Refusal specially and directly But it was the Opinion of Lord Chief Justice Anderson That in things not Triable at Common Law a General Plea was sufficient But when the Case came to the King's Bench 32 Eliz. it was there said That the Articuli Cleri mention a Reasonable Cause which say they must be Special for Causa vaga incerta non est rationabilis But the main point is Who is to judge what is a Reasonable Cause and I cannot but think that Anderson's Opinion is the truest and most Reasonable If it be for a matter Triable at Common Law that Court is to judge but if not I do not see how it can be avoided but the Bishop must judge and his Judgment of Insufficiency must be taken as well as in any Certificate whatsoever For if the Law trust him with the Judgment of a Matter proper for him to judge of other courts which have no Cognizance of it must give credit to such a Certificate or else they must take upon them to judge in Matters that are not of their Cognisance which is to confound the Jurisdiction of Courts I grant the Judgment of the Bishop is not Conclusive but the Appeal then lies to the Supreme Ecclesiastical Court and the Metropolitan is to be Judge of the Sufficiency of the Person But is not this a great Prejudice to the Right of Patrons if the Bishops are to judge of the Fitness of Persons presented and so the Patrons Presentation may signify nothing if the Bishop pleases This is a Trust which the Law reposes in the Bishop and it lies upon his Conscience to act sincerely in this matter and in case of Examination of Fit Persons a Trust must be placed somewhere and in whom more properly than in the Bishop of the Diocese to whom the Care of it doth especially belong and that by as plain Law as any we have Are not all Judges trusted in Matters that come before them But this is no Decisive Judgment for an Appeal lies according to the Nature of the Matter And this is no other Trust than hath been allow'd in all other Christian Nations where the Rights of Patronage are owned Iustinian owns it several times in his Novels not only that the Bishops are to Examine and Approve those who are nominated by Founders of Churches but if they find them unworthy they may put others in their room By the Capitulars or old Ecclesiastical Laws of France the Lay Patrons are not only to present to the Bishop such as were Probabilis Vitae Doctrinae but if upon Examination they found them otherwise it was in their power to reject them As to the Canon Law there can be no Dispute in this Point but if the Bishop refused an Appeal did lie