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
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-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
own and were hardly brought to any reasonable Allowance for the Clergy which supplied them These were called Beneficia in the Capitulars and they were to pay Nonae Decimae i.e. a Fifth Part out of them which was obtained with much Difficulty as appears by the many Laws made about them In the Council at Leptins A.D. 743. Carolomannus son to Charles Martel owns the letting out some of the Church Lands sub Precario Censu upon a reserved Rent Can. 2. Capit. l. 5. c. 3. but then it was barely for Life But the consequence was That it was very hard to recover either the Lands or the reserved Rents and they put in Clergy-men and put them out as they pleased because they held these Lands as Beneficiary Tenures from the Crown So that it was the Work of more than an Age to put the Church there in any tolerable Condition But this seems to be very much mistaken when it is brought to prove the Right of Patronage from the Endowment as to the Disposal of Benefices But the Right of Patronage by the first building and endowing the Church is owned by the Civil Law in Iustinian's Novels 123. c. 18. and Two Things were there required 1. A sufficient Maintenance for the Clergy who were nominated 2. The Bishop's Satisfaction as to their Fitness about which he speaks in another Novel 56. Tit. 12. c. 2. And he elsewhere requires that before any Churches were built the Bishop should see that there were sufficient Maintenance for those who were to officiate Novel 66. Tit. 22. The same Right obtained here upon the same Grounds as appears by the Barons Answer to Gregory IX who affirm That they had it ever since Christianity was founded here They mean ever since parochial Churches were endowed by their Ancestors for there could be no such Right of Patronage before And such Patrons were here called Advocati Ecclesiae as appears by Ioh. Sarisbur Ep. 6. 119. and the Ius Advocationis as our Lawyers tell us is a Right which a Person hath to present to a vacant Benefice in his own Name which is agreeable to what Bracton and Fleta had said long before But it doth not appear by them how the Names of Patron and Advocate came to be so applied Among the Romans saith Asconius Pedianus the Patron was he that pleaded the cause of another the Advocate he that appeared in Court on his behalf But this doth not reach to the Ius Advocationis which we are now about In the Ninety seventh Canon of the African Code an Allowance is made for the Churches to have Advocates to solicite their Causes at Court. From hence the greater Churches and Monasteries had their proper Advocates appointed them by the King as Bignonius observes and in the old Charters of Aub. Miraeus several such Advocates are appointed and it appears to have been an honorary Title and great Men were pleased with it Miraeus faith it was accounted a considerable Honour at that time And so by degrees the Founders of Parochial Churches came to have the Title of Patrons and Advocates of them and the Right they injoyed the Right of Advowson as well as Patronage not as some ridiculously talk of Advocat se or Advocat alium because the Trust and Care of those Churches endowed by their Ancestors was fallen to them and they were bound to look after and to defend the Rights of them and so Lyndwood explains it II. The next thing to be considered is the Oblations of the People which in those elder times were so free and large that which may seem incredible now there were Persons who would build Churches on their own Land to have a Share in the Oblations as is affirmed in one of the Spanish Councils and there forbidden with great Severity It was not as the Gloss on the Canon Law understands it to make a Bargain for the Right of Patronage but it is expressed to have an equal Share with the Clergy in the Oblations of the People It is observed by Agabardus That the Devotion of Persons in the first Ages was so great that there was no need to make Laws or Canons for the Supplies of Churches since they were so amply provided for by the Liberality of the People Thence we read of the Deposita pietatis in Tertullian which were voluntary Oblations and out of which were made Divisiones Mensurnae in S. Cyprian and the Sportulae which were the Allowances made to the Clergy out of the common Stock and they who received them and not those who gave them as Mr. Selden fancies were called Sportulantes Fratres and the Allowances were then stiled Stipes Oblationes which were so considerable that St. Cyprian blamed some for their setting their Hearts too much upon them Stipes Oblationes Lucra desiderant quibus prius insatiabiles incubabant which could not be said of any meer necessary Subsistence these they received tanquam Decimas ex fructibus as St. Cyprian speaks in lieu of Tithes at that time when the most of the Christian Church inhabited the Cities and gave out of their Stock to maintain the Church and those who attended upon the Service of it But when Christianity came to spread into the Countries then a more fixed and settled Maintenance was required but so as to retain somewhat of the Ancient Custom in voluntary Oblations No sooner was Christianity settled in France but we read of Lands given to the Church by Clodovaeus after his Conversion these are owned by the first Council of Orleans called in his time A. D. 511. and were put into the Bishop's Hands and to be distributed by him for Repairs of Churches Maintenance of the Clergy and other pious Uses Can. 5. 14 15. But besides these we read still of Oblations made by the people on the Altar both in the Mother-Church and in Parochial Churches If in the Mother-Church one Moiety went to the Bishop the other to the Clergy if in the other only the third Part to the Bishop In the second Council of Mascon Can. 4. we find it required That all the People make an Oblation of Bread and Wine at the Altar and this was A. D. 585. but besides the next Canon insists on the Payment of Tithes as founded on the Law of God and the Ancient Custom of the Church which is thereby reinforced unde statuimus decernimus ut mos antiquus reparetur which Words are not fairly left out by Mr. Selden because they shew that there was only in this Canon a renewing of an Ancient Custom which had obtained but was now growing into Disuse For this Council of Mascon was called on purpose to restore what they found too much declining as to Religion and they begin with the Observation of the Lord's Day and after add this wherein they complain of the Neglect of that which their Predecessors observed as founded on the Law
considered and practised by the Clergy of this Diocese For since it hath pleased God by his wise and over-ruling Providence without my seeking to bring me into this Station in his Church I shall esteem it the best Circumstance of my present Condition if he please to make me an Instrument of doing good among you To this end I thought it necessary in the first place most humbly to implore his Divine Assistance that I might both rightly understand and conscientiously perform that great Duty which is incumbent upon me for without his help all our Thoughts are vain and our best Purposes will be ineffectual But God is not wanting to those who sincerely endeavour to know and to do their Duty and therefore in the next place I set my self as far as my Health and other Occasions would permit to consider the Nature and Extent of my Duty with a Resolution not to be discouraged altho I met with Difficulties in the Performance of it For such is the State and Condition of the World That no Man can design to to do good in it but when that crosses the particular Interests and Inclinations of others he must expect to meet with as much Trouble as their unquiet Passions can give him If we therefore consulted nothing but our own Ease the only way were to let People follow their Humours and Inclinations and to be as little concerned as might be at what they either say or do For if we go about to rowze and awaken them and much more to reprove and reform them we shall soon find them uneasie and impatient for few love to hear of their Faults and fewer to amend them But it is the peculiar Honour of the Christian Religion to have an Order of Men set apart not meerly as Priests to offer Sacrifices for that all Religions have had but as Preachers of Righteousness to set Good and Evil before the People committed to their Charge to inform them of their Duties to reprove them for their Miscarriages and that not in order to their Shame but their Reformation Which requires not only Zeal but Discretion and a great Mixture of Courage and Prudence that we may neither fail in doing our Duty nor in the best means of attaining the end of it If we could reasonably suppose that all those who are bound to tell others their Duties would certainly do their own there would be less need of any such Office in the Church as that of Bishops who are to inspect and govern and visit and reform those who are to watch over others But since there may be too great failings even in these too great neglect in some and disorder in others too great proneness to Faction and Schism and impatience of Contradiction from mere Equals therefore St. Ierom himself grants That to avoid these Mischiefs there was a necessity of a Superiour Order to Presbyters in the Church of God ad quem omnis Ecclesiae cura pertineret Schismatum semina tollerentur as he speaks even where he seems most to lessen the Authority of Bishops But whatever some Expressions of his may be when the Bishop of Ierusalem and the Roman Deacons came into his head his Reasons are very much for the Advantage of Episcopal Government For can any Man say more in point of Reason for it than that nothing but Faction and Disorder followed the Government of Presbyters and therefore the whole Christian Church agreed in the necessity of a higher Order and that the Peace and Safety of the Church depends upon it that if it be taken away nothing but Schisms and Confusions will follow I wish those who magnifie S. Ierom's Authority in this matter would submit to his Reason and Authority both as to the Necessity and Usefulness of the Order of Bishops in the Church But beyond this in several places he makes the Bishops to be Successors of the Apostles as well as the rest of the most Eminent Fathers of the Church have done If the Apostolical Office as far as it concerns the Care and Government of Churches were not to continue after their Decease how came the best the most learned the nearest to the Apostolical Times to be so wonderfully deceiv'd For if the Bishops did not succeed by the Apostles own Appointment they must be Intruders and Usurpers of the Apostolical Function and can we imagine the Church of God would have so universally consented to it Besides the Apostles did not die all at once but there were Successors in several of the Apostolical Churches while some of the Apostles were living Can we again imagine those would not have vindicated the Right of their own Order and declared to the Church That this Office was peculiar to themselves The Change of the Name from Apostles to Bishops would not have been sufficient Excuse for them for the Presumption had been as great in the Exercise of the Power without the Name So that I can see no Medium but that either the Primitive Bishops did succeed the Apostles by their own Appointment and Approbation which Irenaeus expresly affirms Qui ab Apostolis ipsis instituti sunt Episcopi in Ecclesiis or else those who governed the Apostolical Churches after them out-went Diotrephes himself for he only rejected those whom the Apostles sent but these assumed to themselves the Exercise of an Apostolical Authority over the Churches planted and setled by them But to let us see how far the Apostles were from thinking that this Part of their Office was peculiar to themselves we find them in their own time as they saw occasion to appoint others to take care of the Government of the Churches within such bounds as they thought fit Thus Timothy was appointed by St. Paul at Ephesus to examine the Qualifications of such as were to be Ordained and not to lay hands suddenly on any to receive Accusations if there were cause even against Elders to proceed judicially before two or three Witnesses and if there were Reason to give them a publick Rebuke And that this ought not to be thought a slight matter he presently adds I charge thee before God and the Lord Iesus Christ and the elect Angels that thou observe these things without preferring one before another doing nothing by partiality Here is a very strict and severe Charge for the Impartial Exercise of Discipline in the Church upon Offenders And although in the Epistle to Titus he be only in general required to set in order the things that are wanting and to ordain Elders in every City as he had appointed him yet we are not to suppose that this Power extended not to a Iurisdiction over them when he had Ordained them For if any of those whom he Ordained as believing them qualified according to the Apostles Rules should afterwards demean themselves otherwise and be self-willed froward given to Wine Brawlers Covetous or any way
License but if any one preached in other parts of the Diocess or were a Stranger in it then he was to be examined by the Diocesan and if he were found tam Moribus quam Scientia idoneus he might send him to preach to one or more Parishes as he thought meet and he was to shew his License to the Incumbent of the Place before he was to be permitted to preach under the Episcopal Seal And thus as far as I can find the Matter stood as to Preaching before the Reformation After it when the Office of Ordination was reviewed and brought nearer to the Primitive Form and instead of delivering the Chalice and Patten with these words Accipe potestatem offerre Deo Sacrificium c. the Bishop delivered the Bible with these words Take thou Authority to Preach the Word of God and to Minister the Holy Sacraments in the Congregation c. The Priests Exhortation was made agreeable thereto wherein he exhorts the Persons in the Name of our Lord Jesus Christ to consider the Weight and Importance of the Office and Charge they are called to not barely to instruct those who are already of Christ's Flock but to endeavour the Salvation of those who are in the midst of this naughty World And therefore he perswades and charges them from a due regard to Christ who suffered for his Sheep and to the Church of Christ which is so dear to him to omit no Labor Care or Diligence in instructing and reforming those who are committed to their Charge And the better to enable them to perform these things there are some Duties especially recommended to them viz. Prayer and Study of the Holy Scriptures according to which they are to instruct others and to order their own Lives and of those who belong to them And that they might the better attend so great a Work they are required to forsake and set aside as much as they may all worldly Cares and Studies and apply themselves wholly to this one thing that they may save themselves and them that hear them After which follows the solemn Profession wherein they undertake to do these things This is that my Brethren which I earnestly desire of you that you would often consider You are not at liberty now whether you will do these things or not for you are under a most solemn Engagement to it You have put your Hands to the Plough and it is too late to think of looking back and you all know the Husbandman's Work is laborious and painful and continually returning It is possible after all his Pains the Harvest may not answer his Expectation but yet if he neither plows nor sows he can expect no Return if he be idle and careless and puts off the main of his Work to others can he reasonably look for the same Success Believe it all our Pains are little enough to awake the sleepy and secure Sinners to instruct the Ignorant to reclaim the Vitious to rebuke the Profane to convince the Erroneous to satisfie the Doubtful to confirm the Wavering to recover the Lapsed and to be useful to all according to their several Circumstances and Conditions It is not to preach a Sermon or two in a Weeks Time to your Parishioners that is the main of your Duty that is no such difficult Task if Men apply their minds as they ought to do to Divine Matters and do not spend their Retirements in useless Studies but the great Difficulty lies in Watching over your Flock i. e. knowing their Condition and applying your selves uitably to them He that is a Stranger to his Flock and only visits them now and then can never be said to watch over it he may watch over the Fleeces but he understands little of the State of his Flock viz. of the Distempers they are under and the Remedies proper for them The Casuists say That the Reason why there is no Command for Personal Residence in Scripture is because the Nature of the Duty requires it for if a Person be required to do such things which cannot be done without it Residence is implied As a Pilot to a Ship needs no Command to be in his Ship for how can he do the Office of a Pilot out of it Let none think to excuse themselves by saying that our Church only takes them for Curates and that the Bishops have the Pastoral Charge for by our old Provincial Constitutions which are still in force so far as they are not repugnant to the Law of the Land even those who have the smallest Cures are called Pastors and Lyndwood there notes that Parochialis Sacerdos dicitur Pastor and that not meerly by way of Allusion but in respect of the Care of Souls But we need not go so far back For what is it they are admitted to Is it not ad curam Animarum Did not they promise in their Ordination To teach the People committed to their Care and Charge The Casuists distinguish a threefold Cure of Souls 1. In foro interiori tantum and this they say is the Parochial Cure 2. In foro exteriori tantum where there is Authority to perform Ministerial Acts as to suspend excommunicate absolve sine Pastorali Curâ and this Archdeacons have by Virtue of their Office 3. In utroque simul where there is a special Care together with Jurisdiction this is the Bishops And every one of these say they secundum commune Ius Canonicum is obliged to Residence i. e. by the common Law Ecclesiastical of which more afterwards The Obligation is to perpetual Residence but as it is in other positive Duties there may other Duties intervene which may take away the present force of it as care of Health necessary Business publick Service of the King or Church c. But then we are to observe that no Dispensation can justifie a Man in point of Conscience unless there be a sufficient Cause and no Custom can be sufficient against the natural Equity of the Case whereby every one is bound from the Nature of the Office he hath undertaken I confess the case in Reason is different where there is a sufficient Provision by another fit Person and approved by those who are to take care that Places be well supplied and where there is not but yet this doth not take off the force of the Personal Obligation arising from undertaking the Cure themselves which the Ecclesiastical Law understands to be not meerly by Promise but cum effectu as the Canonists speak which implies personal Residence Not that they are never to be away Non sic amarè intelligi debet ut nunquam inde recedat saith Lyndwood but these Words are to be understood civili modo as he expresses it i. e. not without great Reason There must not be saith he callida Interpretatio sed talis ut cessent fraudes negligentiae i. e. There must be no Art used to evade the Law nor any gross Neglect of
Bishop to be translated from that Place he was first Consecrated to as well as to hold another with it But the Good of the Church being the main Foundation of all the Rules of it when that might be better promoted by a Translation it was by a tacit Consent looked on as no unjust Violation of its Rules The Question then is Whether the Churches Benefit may not in some Cases make the Canons against Non-Residence as Dispensible as those against Translations And the Resolution of it doth not depend upon the voiding the particular Obligation of the Incumbent to his Cure but upon some more general Reason with respect to the State of the Church as being imployed in the Service of it which requires a Persons having not a bare Competency for Subsistence but a Sufficiency to provide Necessaries for such Service For those seem to have very little regard to the flourishing Condition of a Church who would confine the Sufficiency of a Subsistence meerly to the Necessaries of Life But it seems to be reasonable that Clergymen should have Incouragement sufficient not only to keep them above Contempt but in some respect agreeable to the more ample Provision of other Orders of Men. And by God's own Appointment the Tribe of Levi did not fall short of any of the rest if it did not very much exceed the Proportion of others We do not pretend to the Privileges they had only we observe from thence that God himself did appoint a plentiful Subsistence for those who attended upon his Service And I do not know what there is Levitical or Ceremonial in that I am sure the Duties of the Clergy now require a greater Freedom of Mind from the anxious Cares of the World than the Imployments of the Priests and Levites under the Law But we need not go so far back if the Church enjoyed all her Revenues as entirely as when the severe Canons against Pluralities were made there would not be such a Plea for them as there is too much Cause for in some Places from the Want of a competent Subsistence But since that time the Abundance of Appropriations since turned into Lay-Fees hath extreamly lessened the Churches Revenues and have left us a great Number of poor Vicarages and Arbitrary Cures which would hardly have afforded a Maintenance for the Nethinims under the Law who were only to be Hewers of Wood and Drawers of Water But this doth not yet clear the Difficulty For the Question is Whether the Subsistence of the Clergy can lawfully be improved by a Plurality of Livings Truly I think this if it be allowed in some Cases lawful to be the least desirable way of any but in some Circumstances it is much more excusable than in others As when the Benefices are mean when they lie near each other when great care is taken to put in sufficient Curates with good Allowance when Persons take all Opportunities to do their Duties themselves and do not live at a distance from their Benefices in an idle and careless manner But for Men to put in Curates meerly to satisfie the Law and to mind nothing of the Duties of their Places is a horrible Scandal to Religion and our Church and that which if not amended may justly bring down the Wrath of God upon us For the loosest of all the Popish Casuists look upon this as a very great Sin even those who attributed to the Pope the highest Dispensing Power in this Case But when the great Liberty of Dispensing had made the Ecclesiastical Laws in great measure useless then it was thought fit by our Law-makers to restrain and limit it by a Statute made 21 H. VIII wherein it is Enacted That if any Person or Persons having one Benefice with Cure of Souls being of the yearly Value of Eight Pounds or above accept or take any other with Cure of Souls and be instituted and inducted in Possession of the same that then and immediately after such Possession had thereof the first Benefice shall be adjudged to be void And all Licenses and Dispensations to the contrary are declared to be void and of none effect This one would have thought had been an effectual Remedy against all such Pluralities and Dispensations to obtain them and this no doubt was the primary Design of the Law but then follow so many Proviso's of Qualified Men to get Dispensations as take off a great deal of the Force and Effect of this Law But then it ought well to be consider'd Whether such a License being against the chief Design of a Law can satisfie any Man in point of Conscience where there is not a just and sufficient Cause For if the Pope's Dispensation with the supposed Plenitude of his Power could not satisfie a Man's Conscience without an antecedent Cause as the Casuists resolve much less can such Proviso's do it It is the general Opinion of Divines and Lawyers saith Lessius That no Man is safe in Conscience by the Pope's Dispensation for Pluralities unless there be a just cause for it No Man can with a safe Conscience take a Dispensation from the Pope for more Benefices than one meerly for his own Advantage saith Panormitan and from him Sylvester and Summ. Angelica A Dispensation saith Cardinal To-let secures a Man as to the Law but as to Conscience there must be a good cause for it and that is when the Church hath more Benefit by it than it would have without it But the Pope's Dispensing Power went much farther in point of Conscience in their Opinion than that which is setled among us by Act of Parliament For it is expressed in the Statute of 21 Hen. VIII That the Dispensation is intended to keep Men from incurring the Danger Penalty and Forfeiture in the Statute comprised So that the most qualified Person can only say that the Law doth not deprive him but he can never plead that it can satisfie him in point of Conscience unless there be some Cause for it which is of more Moment to the Church than a Man 's sole and constant Attendance on a particular Cure is But this Statute is more favourable to the Clergy than the Canon Law was before in two Particulars 1. In declaring that no simple Benefices or meer Dignities as the Canonists call them are comprehended under the Name of Benefices having Cure of Souls viz. 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 But all these before were within the reach of the Canon Law and a Dispensation was necessary for them Which shews that this Law had a particular respect to the necessary Attendance on Parochial Cures and looked on other Dignities and Preferments in the Church as a sufficient Encouragement to extraordinary Merit 2. That no notice is taken of Livings under the Valuation of 8 l. which I suppose is that of 20 E. 1.
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-Court was first established as a distinct Court from the 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
established Methods of Proceeding agreeable to natural Justice and the Laws of the Land nothing would be more grievous and intolerable than the common Exercise of a Parochial Discipline For 1. It cannot be presumed that there will be competent Judges For every one who hath a Faculty of Preaching hath not a Faculty of Judging in such Cases And where Discretion and a Judgment of Circumstances is wanting an honest Mind will not secure Men from doing Injury and exposing their Judicature to Contempt 2. They have no fixed and established Rules of proceeding as there are in the Ecclesiastical Courts which have been continued down from time to time and allowed by the Laws of the Land And what miserable Disorder must follow an Arbitrary Method when Humour and Will and Passion may over-rule Justice and Equity and Conscience 3. They are not under the Check of the Law as the Ecclesiastical Courts are For if they exceed their Bounds either as to the Nature of the Cause or the Manner of proceeding they are liable to Prohibitions from the King's Courts of Justice but the Law can take no notice of Parochial or Congregational Judicatures and so Men may suffer without Remedy 4. They have no way to judge of Legal Evidence which is very material when a person is accused It is one of the nicest Points in all criminal Proceedings to determine what is good and sufficient Evidence For several things are to be weighed before either Witnesses or Testimonies can be allowed As to Witnesses it is required that they be persons of Reputation and free from Infamy of Law and Fact that they be disinterested and so not liable to the just Suspicion of Partiality that they be Men of Discretion and sane Memory and all reasonable Exceptions are to be allowed against them As to Testimonies they must be by our Law upon Oath and what Authority have such Persons to give an Oath and why shall a Man be liable to suffer by a Testimony without one when the Law requires it They must be deliberate and not given in Passion consistent as to Time Place and other Circumstances They must be certain and positive and not upon Hear-say or the Believing of other persons They must be free from any just Suspicion of Contrivance and Conspiracy or any sort of Corruption or Partiality And now is every parochial Minister or select Congregation fit to judge of these Matters whereon the Reputation and consequently the Interest of every person may be so deeply concerned 5. They have no way to prevent a percipitate and hasty Sentence Suppose a Man be accused by one of Interest and Passion who possesses others with the same Opinion before-hand and the Judges are all prejudiced before the Matter comes to be heard and in popular Assemblies some few men sway the rest what a Case is a person accused unjustly in He hath no Liberty for others that are not of the Congregation altho' more disinterested either to come in to judge or to plead for him He can have no Advocate to defend him or to shew the Weakness or Inconsistency of the Evidence against him In all Ecclesiastical Courts they may sometimes proceed summarily but even then the Fundamental Rules of the Court must be observed as to Proofs and Witnesses or else the Sentence is void but here the Sentence will take place altho' there hath not been the least Colour of Justice in the whole Proceedings 6. Here is no settled Course of Appeals in Case of a wrong Sentence But where Men are liable to Mistake and Passion a Right of Appeal is one of the Fundamental parts of Justice And therefore Independent and Arbitrary Courts of Judicature as all Congregational Churches are are inconsistent with the common Rights of Mankind and that due Subordination which ought to be in all Societies in order to the preserving Order and Justice among Men. But suppose parochial Discipline so settled among us as to allow a Liberty of Appeal how would the Trouble and Vexation and Expence be increased by going from the parochial Sentence to the Bishop's Court and from thence still further So that if there be some Inconveniencies in point of Distance for persons to be summoned to appear at first so far from Home yet there is some Compensation by the less Trouble and Charges if due Care be taken to prevent Delays and unnecessary Expences which ought to be done And those who do make the greatest Clamour against our Courts are rather willing they should continue such as they may have Cause to complain of than to do their Endeavours to reform them Thus I have endeavoured to shew the just Bounds and Limits of parochial Cures II. I now come to consider the just Measure of that Diligence which is required under those Limits For our Church requires Faithful Diligence in Preaching and Sacraments and Prayers and Reading the Holy Scriptures If then we can understand what this Faithful Diligence implies we may come to satisfie our selves whether we do our Duty or not 1. Faithful Diligence implies serious Application of our Minds to the main End and Design of our Holy Function Which is to do good to the Souls of Men especially to those committed to your Charge And an idle careless santering Life or one too busie and distracted with the Cares of the World are not consistent with it I do not go about to take you off from necessary Business and reasonable Allowances as to Health and Studies but that the doing good to your peoples Souls ought to be the principal and chief Design of your Thoughts Studies and Endeavours And if the people be satisfied that this is really your Design among them you will find that your Doctrine will be easier received your Persons esteemed and your Labours valued It is possible you may meet with a froward peevish self-willed people and it is hard when a Man is only set to water and mend a Hedge made up of Briars and Thorns the more pains he takes the more Scratches he may meet with but if it be your Lot be not discouraged from doing your Duty Remember what sort of people the Prophets were sent to and what Usage they had from them what Hardships and Reproaches Christ and his Apostles underwent from a very unkind World but a patient Continuance in well-doing gave them inward Satisfaction in the midst of all and did by degrees gain the Christian Doctrine Access to the Hearts of those who most opposed it 2. It implies an honest and conscientious Care of discharging the known and common Duties of your Function as Preaching Praying Catechizing Administring Sacraments Visiting the Sick c. A diligent Person is one who neglects no good Opportunities of doing his Business but watches for them and studies to improve them to the best Advantage Can those satisfie themselves that they use Faithful Diligence who shamefully neglect their Cures and care not how seldom they come at them nor how they are supplied
the Saxon times viz. That the Iewish Sabbath doth not oblige us but however to observe the like Proportion of time and devote it to the Service of God Mr. Hooker saith That we are to account the Sanctification of one day in Seven a Duty which God's immutable Law doth exact for ever But what is meant by this Sanctification of One day in Seven If it be understood according to the old Canons it will fill scrupulous Minds with more Doubts and Fears about the right Observation of it Origen saith The Observation of the Christian Sabbath lies in these things 1. A Forbearance of worldly Business 2. Attendance on the Publick Worship 3. Divine Meditation on Things invisible and future Haec est observatio Sabbati Christiani And in another place he requires besides Publick Worship private Meditation and Reading the Holy Scriptures S. Chrysostom insists very much upon the same in several places and on different Occasions And altho' it be in his popular Sermons yet he would certainly not put them upon any thing but what he thought very fit to be done And they must have a mean Opinion of him who think his Eloquence carried him too far in this matter I shall conclude with the Opinion of Lyndwood a Learned and Judicious Canonist and he observes a Threefold Sanctification of the Lord's day 1. By Abstinence from Sin which is necessary at all times 2. By Abstinence from such bodily Labours as hinder the Mind's Attendance upon God's Service 3. By the whole Imployment of our Minds in Divine Matters and this he calls the perfect Observation of it These things I have the more largely insisted upon to shew That the Religious Observation of the Lord's day is no Novelty started by some late Sects and Parties among us but that it hath been the general Sense of the best part of the Christian World and is particularly inforced upon us of the Church of England not only by the Homilies but by the most ancient Ecclesiastical Law among us But this is not all for the Ancient as well as Modern Canons require the Observation of Holy-days likewise The Canons of Egbert require not only Prayers but Preaching then Can. 1. 3. The Council of Cloveshoo Can. 13. distinguishes the Holy-days relating to our Saviour from the rest and saith They are to be observed in a solemn and uniform Manner and the rest according to the Roman Martyrology Which I suppose were those repeated then in the Diptychs of the Church which Custom continued longer at Rome than in other Churches but it was generally disused before the time of Charles the Great The Custom in Rome in Gregory's time was to observe the Saints Days with the solemn Service at one Church as appears by his Homilies on the Evangelists which were many of them preached on those Occasions as of S. Felicitas Hom 3. S. Agnes Hom. 11 12. S. Felix Hom. 13. S. Pancrace Hom. 27. c. and of others who were Roman Martyrs and therefore had a particular Solemnity appointed for them But as to other Saints Days it appears by the Antiphonarius and Sacramentary of Gregory I. that they had particular Anthems and Collects proper for them in the Offices of the Day but I do not find that the Generality of the People were so strictly tied up when the Offices were over as they were on the Lord's days and the greater Festivals relating to our Saviour In the Council of Cloveshoo Can. 13. I observe that the Natalitia Sanctorum i.e. the Anniversary Saints Days were observed with particular Psalmody and Anthems and Can. 17. the Days of Gregory and Augustin the Two great Instruments of converting the Nation were only to be kept as Holy-days by the Clergy without any particular Obligation on all the People So that the Holy-days of strict Observation then seem to have been no other than those which relate to our Saviour called Dominicae Dispensationis in carne Festivitates the rest had some proper Offices which were performed on their Days but the People were to attend them as well as they could but after there was not this strictness required as upon the greater Holy-days and as it was in the Church of Rome afterwards when they made the Obligation of Conscience to extend to all Holy-days appointed by the Church But it is observable 1. That this Obligation is taken from those Canons which mention only the Lord's day as appears by Bellarmin 2. That they kept up the Distinction of greater and lesser Holy-days 3. That they allow the Bishop to dispense as to some Works on Holy-days Lyndwood observes that the Abstinence from Work is not alike but as the Church hath required it and that if a Bishop's Licence cannot be had a less will serve Our Church Can. 13. requires Holy-days to be observed with Works of Piety Charity and Sobriety but gives no Rule as to Abstinence from Works or the strict Obligation of Conscience 2. I now come to the particular Duties of the Clergy on the Days which are solemnly devoted to the Service of God 1. The constant and devout Attendance upon and solemn Reading the Prayers of the Church as they are appointed In the old Saxon Canons the Presbyters are required to officiate constantly at Prayers in their Churches so in the Council at Cloveshoo Can. 8. the Canons of Egbert Can. 2. Canons of Edgar Can. 45. But how if the People will not come to the Prayers You ought what lies in you to remove the Causes of such Neglect which arises generally from these things either a gross Stupidity and Regardlesness of Religion which is too common in the World or from Prejudice and Principles of Education or the Interest of a Party or from not Reading the Prayers with that Attention and Devotion which is fit to raise an Esteem of them The other two you ought to do what you can to remove but this is your own Fault if you do it not We are not to please the Fancies of People by an affected Variety of Expressions in Prayers but we ought to do what we can to excite their Affections which is done as much by the due manner of Reading as by Figures in Speaking And the People are uneasie at staying when they see the Minister read them so fast as though he minded nothing so much as to be at the end of them or when he mangles them so as if he had a mind to make the People out of love with them 2. The next Duty is Preaching and truly that need to be looked after when the Esteem of our Profession depends so much upon it We have none of those Methods which those on both sides make so much use of we can neither comply with the People in Gestures and Phrases and Enthusiastick Heats nor with the Superstitious Devotions and Priest-craft of others Of all Churches ours hath the least Reason to be charged
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
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-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-Court by as good a Law as any was made at that time distinct from the 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-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
Knowledge and Admonition of their Duty For Contempt is Nolle subjici cui oportet subjici and a lesser Fault commited with it is a greater Sin than a greater Fault in it self committed without it i.e. by meer carelesness and inadvertency But where there is an open and customary Neglect there is a Presumption of Contempt unless some great and evident Reason be produced for it I do not say the bare Neglect doth imply Contempt in it self but where there is admonition and a continuance after it there is a down-right and positive Contempt But where the Disuse is general not out of Contempt but upon other Reasons and there is no Admonition by Superiours but a tacit Connivence there is a Presumtion of a Consent towards the laying aside the strict Obligation of the Canons relating to it 2. It must be reasonable i.e. on such Grounds as may abate the Force of the Obligation For there is a Difference between a Custom obtaining the Force of a Law and a Custom abating the Force of a Canon In the former case the Custom must be grounded on more evident Reason than is necessary for the latter Wherein the Casuists allow a Permission of Superiours joyned with reasonable Circumstances to be sufficient But how can acts of Disobedience make a reasonable Custom Cajetan saith They are to blame who began it but not those who follow it when the Custom is general And Suarez saith It is the common Opinion The Canonists say If a Custom be against a Rule the Reason must be plain if only besides the Rule and be not repugnant to the End and Design the Reasonableness when it becomes general is presumed But if the Superiours take notice of it and condemn it it loses the Force of Custom unless a new Reason or higher authority appear for it 3. But what is to be said for Customs taken up without Rules or Canons of what Force are they in Point of Conscience 1. It is certain that no late Customs brought in by such as have no Authority to oblige can bind others to follow them For this were to lay open a Gap to the introducing foolish and superstitious Customs into the Church which would make Distinctions without cause and make way for Differences and Animosities which all wise and good Men will avoid as much as may be It is a Rule among the Casuists That voluntary Customs although introduced with a good Mind can never oblige others to observe them And Suarez yields that a bare frequent Repetition of Acts cannot bind others although it hath been of long continuance 2. If the Customs be such as are derived from the primitive times and continue in practice there is no Reason to oppose but rather to comply with them or if they tend to promote a Delight in God's Service As for instance 1. Worshipping towards the East was a very ancient Custom in the Christian Church I grant that very insufficient Reasons are given for it which Origen would not have Men to be too busie in inquiring into but to be content that it was a generally received Practice even in his time and so doth Clemens Alexandrinus before him who thinks it relates to Christ as the Sun of Righteousness Tertullian and S. Basil own the Custom and give no Reason But of all Customs that of Contention and Singularity where there is no plain Reason against them doth the least become the Church of God 2. The Use of Organical Musick in the Publick Service If it tends to compose and settle and raise the Spirits of Men in the Acts of Worship I see no Reason can be brought against it If it be said to be only a natural Delight that Reason will hold against David who appointed it by God's own Commandment They who call it Levitical Service can never prove it to be any of the Typical Ceremonies unless they can shew what was represented by it I come now to the Measure of the Obligation of the Canons in Force And therein a great Regard is to be had to the Intention of that Authority which enjoyns them and that is to be gathered from three Things 1. The Matter 2. The Words and Sense of the Church 3. The Penalty 1. As to the Matter If it be in it self weighty and tends to promote that which is good and pious and for the Honour of God and Service of Religion it cannot be denied but these Canons do oblige in Conscience Bellarmin distinguishes between Laws of the Church which he saith are very few and pious Admonitions and good Orders which are not intended to oblige Men to sin but only in case of Contempt and Scandal And as to the Feasts and Fasts of the Church which belong to the Laws he saith They have mitissimam Obligationem so any one would think who considers how many are exempted and for what Reasons Gerson saith That no human Constitutions bind as to moral Sin unless it be founded on the Law of God as he confesses the Church's Authority is as to circumstances and then he thinks it obliges in Conscience The Substance of his Opinion which hath been much disputed and controverted by Modern Casuists lies in these things 1. That where Ecclesiastical Constitutions do inforce any part of the Law of God although it be not expresly contained therein they do immediately bind the Consciences of Men. 2. That where they tend to the good of the Church and the Preservation of Decency and Order they do so far oblige that the contempt of Authority therein is a Sin against the Law of God 3. That where the Injunctions of Authority are for no other End but to be obeyed he doth not think that there is any strict Obligation in point of Conscience And so far Cajetan agrees with him And although the other Casuists seem to be very angry with him yet when they require a publick Good and the Order of the Church to be the Reason of Ecclesiastical Laws they do in effect agree with him Now as to the Matter of our Canons which respect the Clergy there are two especially which bind them strictly 1. The Canon about Sobriety of Conversation Can. 75. Yes some may say as far as the Law of God obliges i.e. to Temperance and Sobriety but the Canon forbids resorting to Taverns or Alebouses or playing at Dice Cards or Tables doth this Canon oblige in Conscience in this manner If it were a new thing that were forbidden there were some Plea against the Severity of it but frequenting Publick Houses is forbidden by the Apostolical Canons which are of great Antiquity by the Council of Laodicea and in Trullo and many others since And by the Apostolical Canons any Presbyter playing at Dice and continuing so to do after Admonition is to be deprived The Illiberitan Council makes it Excommunication to play at Dice Not meerly for the Images