f. 97. a 134. a. 344. a. Co. 2. Inst. f. 3. Stat. 25. E. 1. Carlisle that all Arch-Bishops and Bishops of England have been founded by the Kings of England and therefore it hath been declared in Parliament that the Holy Church of England was founded in the State of Prelacy within this Realm by the King and his Progenitors But here then may be queried who were the first Founders of the Bishopricks in Wales It is answered 10. H 4.6 b. Co. Litt. 97. â—â—o 2. Inst. f. 195. On the Stat. of West 1. c. 17. That the Bishopricks in Wales were founded by the Princes of Wales and the Principality of Wales was holden of the King of England as of his Crown and when the Prince of Wales committed Treason Rebellion c. the Principality was forfeited and the Patronages of the Bishops annexed to the Crown of England So as the King is to have Pensions for his Chaplains and Corodies for his Vadelers of them as of Bishops founded by himself 2. To whom the Custody of the Spiritualties and Temporalties of Bishops do appertain Sede Vacante Co. 2. Inst 15. West 1. c 21. Magna Charta 5. Prerog Regis c. 14. Rolls Abr. 2. p. f. 223. THe Custody of the Temporalties of every Arch-Bishop and Bishop says Coke within the Realm and of such Abbies and Priories as were of the King's Foundation after the same became void belonged to the King during the Vacation thereof by his Prerogative For as the Spiritualties belonged during that time to the Dean and Chapter de Communi Jure or to some other Ecclesiastical Person by Prescription or Composition so the Temporalties came to the King as Founder And this doth belong to the King being Patronus Protector Ecclesiae in so high a Prerogative incident to his Crown as no Subject can claim the Temporalties of an Arch-Bishop or Bishop when they fall by Grant or Prescription 3. How Bishops were and how now made IT is apparented by our Books of Law and History Co. Lit. f. 134. a. 344. a. Co. Lib. 3 Dean and Chapt. of Norwich 's case Rolls Rep. 2. part f. 102. Davy's Rep. f. 46. a. de Capitulariter congregatis that at the first all the Bishopricks in England were Donative per Traditionem Baculi i. e. the Crosier which was the Pastoral Staff and Annuli the Ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them elective refused it But King John by his Charter bearing Date Quinto Junti Anno Decimo Septimo granted that the Bishopricks should be Eligible which afterwards was confirmed by divers Acts of Parliament And afterward the manner and order as well of Election of Arch-Bishops and Bishops as for the Confirmation of the Election and Consecration is enacted and expressed in the Statute of the Twenty fifth of Henry the Eighth But by the Statute of the thirty first of Henry the Eighth and the first of Edward the Sixth they were made Donative by the King's Letters Patents Both which Statutes are repealed and the Statute of the twenty fifth of Henry the Eighth doth yet remain in full force and effect 4. Their Jurisdiction what and whence derived AS to the Jurisdiction and Authority that appertains to Bishops are considerable two Particulars 1. Whence this Jurisdiction is derived 2. The Extent and Subject Matters of this Jurisdiction 1. Whence derived The King of England is and of Right always was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his Dominions And this is evident our by Books The Right Reverend Prelate Matthew Parker Arch-Bishop of Canterbury a man very expert in matters of Antiquity affirms in his Book set forth in Latin Anno Domini Co. lib. 9. Hensloes Case 1573. Quod Rex Angliae olim erat Conciliorum Ecclesiasticorum praeses vindex temeritatis Romanae Propugnator Religionis nec ullam babebant Episcopi Authoritatem praeter eam quam a Rege acceptam referebant Jus testamenti probandi non habebant Administrationis potestatem cuique delegare non poterant It was resolved in the Tryal touching Legitimation Davy's Reports f. 51. b. 52. a. and Bastardy that although all Matrimonial Causes have been a long time determinable in the Ecclesiastical Courts and are now properly within the Jurisdiction and Cognisance of the Clergy Vide Davy's Reports Le Case de Premunire 97. b. 98. a. Yet Ab Initio non fuit sic For as well Causes of Matrimony as Causes Testamentary were Civil Causes and apertained to the Jurisdiction of the Civil Magistrate as it is well known to all Civilians until the Christian Emperors and Kings for the honouring of Prelates of the Clergy have granted or allowed to them the Cognizance and Jurisdiction in those Cases And therefore the Kings of England although they have allowed the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertained to their Cognizance yet by the Rules of the Common Law he hath a Superintendency upon their proceeding with power of Direction when and how they shall proceed and of Restraint and Correction if they proceed not duely and orderly in many Cases as it is manifested by the Writs of several natures directed to the Bishops whereby the King commands them to certifie Bastardy Excommunication Profession Accouplement in Loyal Matrimony Of Admitting Clerks De Cautione Admittenda c. And also by Writs of Prohibition Consultation and Attachments for Prohibition 2. What is their Jurisdiction For the deciding of Controversies says Sir Edward Coke and distribution of Justice there be two distinct Jurisdictions The one Secular and General for that it is guided by the common and general Law of the Realm Co. Lit. f. 96. a. The other Ecclesiastical limited to certain spiritual and particular Cases and the Court wherein the Causes are handled is called Forum Ecclesiasticum in which the Bishops are Judges and immediate Officers to the King's Courts of Justice in Causes Ecclesiastical Now the Spiritual or Ecclesiastical Causes accarding to the usage and custom of England are Blasphemy Apostacy from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces General Bastardy Subtraction and Right of Tithes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Symony Incest Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical Cases Commutation of Penance All which are determined by Ecclesiastical Judges That the Reader may the better know the Extent and Latitude of the Episcopal Jurisdiction and Authority let him take with him these Rules that I have met withal in our Books 1. Rule That where the Right is Spiritual Co. Lit. 96 a. and the Remedy therefore only by the Ecclesiastical Law the Cognisance thereof doth appertain to the
Ecclesiastical Court 2. When the Right of Tithes shall be tried in the Spiritual Court Co. Lib. 13. f. 17. Case of Modus decimandi and the Spiritual Court hath Jurisdiction thereof that other Courts shall be outed of their Jurisdiction 3. Where the Common or Statute Law Co. Lit. 96. b. giveth Remedy in Foro Seculari whether the matter be Spiritual or Temporal the Cognisance of that Cause belongeth to the King 's Temporal Courts only unless the Jurisdiction of the Ecclesiastical Court be saved or allowed by the Statute to proceed according to the Ecclesiastical Laws 4. Cujus Juris i. e. Jurisdictionis est Principale ejusdem Juris erit Accessorium Co. lib. 13. Collins and Hardinger's Case Co. Lib. 13. Case de Modo decimandi Or Consonans Rationi quod Cognitio Accessarii in Curia Christianitatis sit ubi Cognitio Causa Principalis ad forum Ecclesiasticum noscitur pertinere I will conclude this Section with this Remark The Office of Episcopacy is not from the King but of God The Place Station and Power wherein that Office is exercised is from the King It is the King that gives the Bishoprick It is God that makes the Bishop A Soveraign Prince claims not the Power of ordaining a Pastor in the Church On the other side Who but Princes can take upon them to have power to erect and dispose of Episcopal Seas within their own Dominions 5. Their Courts THe Courts wherein the Bishops exercise their Jurisdiction in Matters Spiritual or Ecclesiastical are these following 1. The Court of Convocation This Court is styled or called the Convocation of the Clergy who are assembled for Consultation upon matters Ecclesiastical in time of Parliament It consisteth of two distinct Houses The one called the Higher Convocation House where the Arch-Bishops and Bishops sit severally by themselves The other the Lower Convocation-House where all the rest of the Clergy are bestowed And as there be two Houses of Convocation so there be two Prolocutors one of the Higher House the other of the Lower House who presently upon the first Assembly is by the motion of the Bishops chosen by the Lower House and presented to the Bishops for their Prolocutor that is the Man by whom they mean to deliver their Resolutions to the Higher House and to have their own House especially ordered and governed His Office is to cause the Clerk to call the Names of such as are of the House when he seeth cause to cause all things propounded to be read by him to gather the Suffrages and such like Those that sit in this same Lower House are called the Procters of the Clergy which are chosen and appointed to appear for Cathedral or other Collegiate Churches as also for the Common Clergy of every Diocess at the Parliament Whose Choice is in this sort First The King directeth his Writ to the Arch-Bishop of every Province for the summoning of all Bishops Deans Arch-Deacons Cathedral and Collegiate Churches and generally of all the Clergy of his Province after their best discretion and judgment assigning them the time and place in the said Writ Then the Arch Bishops proceed in their accustomed Course One Example may serve to shew both The Arch-Bishop of Canterbury upon his Writ received directeth his Letters to the Bishop of London as his Dean-Provincial first citing himself peremptorily and then willing him to cite in like manner all the Bishops Deans Arch-Deacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the place and against the day fixed in the Writ But directeth withal that one Proctor sent for every Cathedral or Collegiate Church and two for the Body of the Inferior Clergy of each Diocess may suffice And by vertue of these Letters authentickly sealed the said Bishop of London directeth his like Letters severally to the Bishop of every Diocess of the Province citing them in like sort and commanding them not only to appear but also to admonish the said Deans and Arch-Deacons personally to appear and the Cathedral and Collegiate Churches as also the Common Clergy of the Diocess to send their Proctors to the place and at the day appointed And also willeth them to certifie the Arch-Bishop the names of all and every one so monished by them in a Schedule annexed to their Letters Certificatory The Bishops proceed accordingly and the Cathedral and Collegiate Churches as also the Clergy make choice of their Proctors Which done and certified to the Bishop he returneth all answerably to his charge at the day Having given an Account how the Proctors of the Clergy are chosen it will be high time to shew the Jurisdiction of this Court what it was and what now is 1. What their Jurisdiction was The Jurisdiction of this Court was Co. 4. Inst 323. to deal with Heresies Schisms and other mere Spiritual and Ecclesiastical Causes and therein they did proceed Juxta Legem Divinam Cannones Sanctae Ecclesiae And Co. 4. Inst f. 322. as they could never assemble together of themselves but were always called together by the King 's Writ so were they oftentimes commanded by the King 's Writ to deal with nothing that concerned the King's Laws of the Land his Crown and Dignity his Person or the State of his Council or Kingdom 2. What their Jurisdiction now is By the Statute of the twenty fifth of Henry the Eighth C. 19. their Jurisdiction and Power is much limited and straitned concerning their making of new Canons For they must have both License to make them and after they be made the King 's Royal Assent to allow them before they be put in Execution But note that in the end of that Act of the twenty fifth of Henry the Eighth there is an express Proviso that such Canons as were made before that Act which be not repugnant to the King's Prerogative the Laws Statutes or Customs of the Realm should be still used and executed as they were before the making of that Act. It may be then queried whether before the Statute of the twenty fifth of Henry the Eighth a Disme granted by the Clergy could bind the Clergy before the Royal Assent It is answered that before this Act of the twenty fifth of Henry the Eighth a Disime granted by the Clergy at the Convocation did not bind the Clergy before the King 's Royal Assent Co. 4. Inst 323. 20. H. 6.13 2. The Prerogative Court of the Arch-Bishop In this Court all Testaments be proved and all Administrations granted where the Party dying within the Province of the Arch-Bishop of Canterbury hath Bona Notabilia in some other Diocess than where he dieth which regularly is to be to the value of five pound but in the Diocess of London it is ten pound by Composition It is said that Administration must be in two places if the Intestate died in a Peculiar within the Province of York having Chattels in both Cro. 1 Part. f. 719. 3.
Henry the Eighth as Chester and Bristow c. there the Chapters are also new There is a great Diversity between the coming in of the Antient Deans and the New For the Antient come in in much like sort as Bishops do For they are chosen by the Chapiter by a Cogue de Eslier as Bishops be and the King giving his Royal Assent they are confirmed by the Bishop But they which are either newly translated or founded are Donative and by the King's Letters Patents are installed Note The Word Dean is also applied to divers that are the Chief of certain peculiar Churches or Chappels As The Dean of the Ring 's Chappel The Dean of the Arches The Dean of St. Georges Chappel in Windsor The Dean of Bocking in Essex The Corporation consisting of Dean and Chapter they may joyntly purchase Lands and Tenements to the use of their Church and Successors And every one severally likewise may purchase to the use of himself and his Heirs Grants at this day Co. Lic 342. a. made by a Dean and Chapter or any other having any Spiritual or Ecclesiastical Living are restrained by Act of Parliament so as they cannot grant any Rent-Charge or make any Alienation or any Leases to bind their Successors other than for Term of twenty one Years or three Lives in Possession whereupon the accustomed Rent or more shall be reserved 2. Arch-Deacons Arch-Deacons in Latine Archi-Deacanus and in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ex 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Princeps 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Minister is styled Oculus Episcopi Whose Court is to be holden as is said before where and in what places he either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Arch-Deaconry And from him the Appeal is to be Diocesan It has been resolved Hobart 's Reports Hutton 's Case that if a Suit be before an Arch-Deacon whereof by the Statute of the twenty third of Henry the Eighth the Ordinary may license the Suit to an higher Court that the Arch-Deacon cannot in such Case bawlk 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 that so it had been ruled heretofore 2. Of a Spiritual Administration with a Cure UNder this Form I place Parsons and Vicars 1. Parsons Parson in Legal Signification is taken for the Rector of a Church Parochial and is called Persona Ecclesiae because he assumeth and taketh upon him the Parson of the Church and is said to be siezed in Jure Ecclesiae And the Law had an excellent end herein viz. That in his Person the Church might sue for and defend her Right and also be sued by any that had an elder and better Right And when the Church is full it is said to be Plena Consulta of such a one Parson thereof that is full and provided of a Parson that may Vicem seu personam ejus gerere Persona Impersonata Parson Impersonate Co. Lit. 300. b. is the Rector that is in Possession of the Church Parochial be it Presentative or Impropriate and of whom the Church is full To every Church-Presentative there is a Patron and it is he that hath the Advowson of a Parsonage belonging to his Mannour or otherwise in Gross and thereby may or ought to give the same Benefice or present thereto when and as often as it falleth void And that is in case of Death Resignation Deprivation or Session as by taking a Benefice incompatible And this being Patron had beginning for the most part by one of these three ways namely Either by reason of the Foundation for that the Patron or his Ancestors Co. Lit. 119. b. or those from whom he claims were Founders or Builders of the Church Or By reason of Donation for that they did endow or give Lands to the same for maintenance thereof Or else By reason of the Ground because the Church was set or builded upon their Soil And many times by reason of them all three 2. Vicars For the beginning of Vicaridges the difference betwixt a Vicaridge and an Advowson and the several sorts of Vicaridges I refer my Reader to Davy's Reports f. 83. a. Cro. 2. p. s 518. and I shall only give him some little Information concerning Vicaridges by shewing him somewhat of Impropriations Impropriations or Appropriations were says my Author when those Houses of the Romish Religion and those Religious Persons as Abbots Priors and such like had the Advowson of any Parsonage to them and to their Successors and obtained License of the Pope and of the Ordinary and King that they themselves and their Successors from thenceforth should be Parsons there and that it shall be from thenceforth a Vicaridge and that the Vicar should serve the Cure And so at the beginning Appropriations were made only to those Persons Spiritual that could administer the Sacraments and say Divine Service As Abbots Priors Deans and such like After by little and little they were enlarged and made to others As namely to a Dean and Chapter which is a Body Corporate consisting of many which Body together could not say Divine Service And which was more To Nuns that were Prioresses of some Nunnery which was a wicked thing In so much as they could neither administer Sacraments nor preach nor say Divine Service to the Parishioners And all this was for pretence of Hospitality and maintenance thereof And to supply these defects a Vicar was devised who should be Deputy to the Priors or to the Dean and Chapter and also at the last to the said Abbots and others to say Divine Service and should have for his labour but a little Portion and they to whom the Appropriations were made should retain the greater Revenues and they did nothing for it By means whereof Hospitality decayed in the place where it ought to have been chiefly maintained namely in the Parish where the Benefice was and where the Profits did grow And so it continues to this day to the great hinderance of Learning to the Impoverishment of the Ministery and to the Infamy of the Gospel and Professors thereof To this Learning of Impropriations I shall add the very words of him that was the Glory of his Age and Nation In mine Opinion Lord Bacon and Sense says he I must confess let me speak it with Reverence that all the Parliaments since the twenty seventh and thirty first of Henry the Eighth who gave away Impropriations from the Church seem to me to stand in a sort obnoxious and obliged to God in Conscience to do somewhat for the Church to reduce the Patrimony thereof to a Competency For since they have debarred Christs Wife of a great part of her Dowry