by the Court that this is a Pension for which Suit shall be in the Ecclesiastical Court 42. In the Case between Draiton and Cotterill against Smith for a Prohibition it was said by Coke Chief Justice That if the Parson sues in the Ecclesiastical Court for Tithes and the other pleads a Modus to the Vicar this Modus now can never come in question by this Suit between the Parson and him for Tithes due unto the Parson but this is to be questioned and determined there in the Ecclesiastical Court to whom the Tithes do belong whether to the Parson or to the Vicar And this hath been divers times Adjudged in this Court and in the Court of C. B. in Bushe's Case for Pankeridge-Church and it hath always been clearly held That if the Right of Tithes come into question between the Parson and the Vicar to which of them the same doth belong This is a Suit properly belonging to the Ecclesiastical Court to hear and determine the same and in such case they are not there to be ousted of their Jurisdiction And this being now a Question between the Parson and the Vicar to which of them Tithes did belong for which the Modus is alledged to be paid therefore no Prohibition is to be granted in this case though there be a Modus suggested to be paid unto the Vicar for all Tithes here due to the Vicar and Parson the Parson suing for the Tithes there as due unto himself and not unto the Vicar And so the Question is as touching the Right of Tithes between the Parson and the Vicar which is a Suit proper for the Ecclesiastical Court And this is to be observed for a sure Rule in such a Case never to have a Prohibition granted The Reason of this is because that the Modus suggested to be paid cannot come in question upon this Suggestion of this payment unto the Vicar but only the Right of Tithes to whom they belong whether to the Parson or to the Vicar and divers Judgments have been accordingly given in the like Case And so by the Rule of the whole Court a Prohibition was denied 43. Whether and how far and in what manner the Ecclesiastical Court may exercise its Jurisdiction in cognizance of a Modus Decimandi is at large argued and debated at the Bench in Harding's Case against Goseling where in a Prohibition to stay Proceedings in the Ecclesiastical Court upon a Suit there for Tithes where G. Libelled against H. for a Modus Decimandi being not paid and there H. alledged another Modus Decimandi which Allegation the Ecclesiastical Court refusing to admit a Prohibition was thereupon prayed in B. R. In this case Doderidge Justice said That the Modus Decimandi is as well due to the Parson as Tithe is at the Common Law and if the Parson do Libel in the Ecclesiastical Court for a Modus Decimandi as he may do and another Modus is there alledged and this refused the Ecclesiastical Court may try and determine this matter touching this Modus and no cause to grant a Prohibition for this Refusal But if the Ecclesiastical Court doth deny to admit the Allegation for the Modus upon this ground only because the practice of the Ecclesiastical Law and our Law do differ in the manner of Proof as for default of two Witnesses one being allowed at Common Law but not at the Ecclesiastical Law In this Case a Prohibition is grantable but otherwise the Ecclesiastical Jurisdiction may as well try the Modus Decimandi as the Right of Tithes But if a Parson doth Libel there for Tithes in kind and a Modus is alledged and there pleaded but refused to be admitted or allowed in that Case a Prohibition is grantable upon such Refusal Haughton Justice In this Case a Prohibition ought to be granted otherwise in such cases upon every small difference alledged in the Modus that Court may try and determine the validity of every Modus Decimandi which the Ecclesiastical Court cannot do by the Law for that Court is not permitted by our Law to try a Modus Decimandi and therefore that Court proceeding to try this Modus which is determinable by Common Law and not in the Ecclesiastical Court a Prohibition ought to be granted But Doderidge Contra No Prohibition is in this case to be granted for the Ecclesiastical Court may well try and determine this Modus by that Law The Libel being there originally for the Modus But if touching the Proof of this Modus as aforesaid the difference of proceedings between the two Laws one Witness being sufficient at the Common Law not so at the Ecclesiastical be the ground of the Refusal of the Allegation then a Prohibition is to be awarded so is 1 R. 3. and 10 H. 7. but if the Ecclesiastical Court only proceed to try the Modus for which the Libel was there this by Proof may well be there examined Croke Justice at this time delivered no opinion at all in this Case Afterwards this Case being moved again Doderidge If a Parson do Libel in the Ecclesiastical Court for a Modus whereas in truth there was no Modus but only a composition of late time between the Parson and the Parishioners to pay so much yearly for Tithes and not otherwise In this Case because that the Common Law and the Ecclesiastical do differ in the point of Prescription Ten years continuance being a good Prescription by that Law but not so by Ours in this case a Prohibition is grantable Houghton A Modus Decimandi is properly to be tried and determined by the Common Law and not in the Ecclesiastical Court for that these two Laws differ in many things as in point of proof of a Modus and in the point of Prescription Croke A Special Modus being Libelled for in the Ecclesiastical Court is there to be tried Doderidge If the Ecclesiastical Court doth refuse to allow of the Proof allowable at the Common Law a Prohibition lies to stay proceedings for Tithes there And where there is a Modus if they refuse to pay this the Parson may sue for this Modus in the Ecclesiastical Court and this is to be tried there But if in such case where there is a Modus if the Parson will Libel to have his Tithe in kind and the other shews there this Modus which they will not allow of a Prohibition lies and this shall be tried by the Common Law The Court declares That they would see the Suggestion and therefore by the Rule of the Court they were to make their Suggestion and to shew the same to the Court as they would stand unto it and in the mean time the Suit in the Ecclesiastical Court to be stayed 44. To conclude this Chapter it may not be impertinent to enquire when and how the Canon Law was introduced into this Realm of England In the Case of a Commendam that was Adjudged in Ireland it was observed That after the
Custome or the Parson by virtue of a Canon shall chuse the Churchwarden and whether Prohibition lies in that case 22. Whether Churchwardens as a Corporation may prescribe to take Lands to them and their Successors to the use of the Church 1. CHurchwardens or Guardiani Ecclesiae are certain Officers Parochial annually elected or chosen by and with the consent of the Minister and a select number of the chief Parishioners according to the Custome of the place to look to the Church and Church-yard and to take care of the concernments thereof and of such things as appertain thereto as also to observe and have an inspection into the Behaviour Lives and Conversation of their Parishioners touching such faults and disorders as are within the cognizance and censure of the Ecclesiastical Jurisdiction These Officers are a kind of Corporation enabled to sue and be sued for any matters or things belonging to the Church or Poor of their Parish and have as their Assistants certain Side-men or Questmen who according to the custome of the Parish are yearly likewise chosen to assist the Churchwardens in the Enquiry and presenting such offenders to the Ordinary as are within the Ecclesiastical cognizance and censure aforesaid for which they are not to be sued or troubled at the Law by any such Offenders so presented as aforesaid nor are they obliged to Present oftner than twice a year except it be at the Bishop's Visitation yet they may present as oft as they shall think meet if good occasion shall so require but they may not on pain of being proceeded against by their Ordinaries as in cases of wilful Perjury in Courts Ecclesiastical willingly and wittingly omit to present such publick Crimes as they knew to have been committed or could not be ignorant that there was then a publick same thereof Moreover the Old Churchwardens are to make their Presentments before the New be Sworn till which time the Office of the old continues the usual time for the New Churchwardens to enter upon their Office is the first week after Easter or some week following according to the direction of the Ordinary before which the old Churchwardens shall exhibit the Presentments of such enormities as happened in their Parish since their last Presentments and shall not be suffered to transmit or pass over the same to those that are newly chosen By the Ninetieth Canon the choice of Churchwardens Questmen Sidemen or Assistants is to be yearly made in Easter-week and that by the Joynt-consent of the Minister and the Parishioners if it may be otherwise the Minister to chuse one and the Parishioners another who at their years end or within a month next after shall in the presence of the Minister and the Parishioners make a just Account of what they have received and disbursed for the use of the Church and shall deliver over what remains in their hands belonging to the Church unto the next Churchwardens by Bill Indented 2. One brought Action on the Case against Churchwardens for a false and malicious Presentment of him in the Spiritual Court and found for the Defendants They prayed double Costs on the Statute of 1 Jac. But Jones Crook and Berkley Justices denied it for that the Statute doth not extend to Churchwardens for things of their office in Ecclesiastical Causes They have their Action of Trespass at the Common Law for such things taken away out of the Church as belonged to the Parishioners in reference to the Church And the Release of one of the Churchwardens is no Bar in Law to the other If one take away the Chalice or Surplice out of the Church Action of Trespass lieth against him at Common Law and not in the Ecclesiastical Court So if one lay violent hands on an Ecclesiastical person an Action lies in the Ecclesiastical Court but he shall not there sue for dammages If the Organs or Parish-Bible or the like be taken away out of the Church the Action lies at the Common Law and not in the Spiritual Court for the same for the Churchwardens may have their Action at Common Law in that case But if the Parson take away out of the Church the Scutcheon or Banner of some person deceased his Widow if she did put it there and it be taken away in her life time may have her Action of Trespass at Common Law or after her decease the Heir may have the same Action 3. Trespass brought by the Churchwaâ—dens of F. and declared That the Defendant took a Bell out of the said Church and that the Trespass was done 20 Eliz. It was found for the Plaintiffs It was moved in Arrest of Judgment that it appears by the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have Action and Actio personalis moritur cum persona Vid. 19 H. 6. 66. But the old Churchwardens shall have the Action Coke contrary and that the present Church-wardens shall have the Action and that in respect of their Office which the Court granted And by Gawdy Churchwardens are a Corporation by the Common Law Vid. 12 H. 7. 28. by Frowick That the New Churchwardens shall not have an Action upon such a Trespass done to their Predecessors Contrary by Yaxley Vid. by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass 4. It is the duty of Churchwardens not only to take care of the Concernments of the Church and to present Disorders as aforesaid but also to provide Bread and Wine against the Communion the Bible of the largest Volume the Book of Common Prayer a decent Pulpit a Chest for Alms Materials for repairing the Church and fencing the Church-yard and the like all at the Parish-charge and shall what in them lies prevent the prophanation of Churches by any usage thereof contrary to the Canons It was agreed by the Court in Robert's case That a Tax for the Church cannot be made by the Churchwardens only Hetley's Rep. 5. In Butt's Case Moore Serjeant moved at Court for a Prohibition because where the custome of the Parish or Village was that the Parishioners have used to elect two Churchwardens and at the end of the year to discharge one and elect another in his room and so alternis vicibus c. By the New Canon now the Parson hath the Election of one and the Parish of the other and that he that was elected by the Parishioners was discharged by the Ordinary at his Visitation and for that he prayed a Prohibition Et allocat as a thing usual and of course For otherwise by Hubbard the Parson might have all the Authority of his Church and Parish The like Case to this we have elsewhere reported viz. The Parson and Church-wardens in London by the Custome are a Corporation and the Parishioners time out of mind c. have used at a
but by death or resignation for otherwise Dilapidations should be in the time of the Successor and he cannot maintain Hospitality 8. The wasting of the Woods belonging to a Bishoprick is in the Law understood as a Dilapidation as was formerly hinted Note By Coke Chief Justice a Bishop is only to fell Timber for Building for Fuel and for his other necessary occasions and there is no Bishoprick but the same is on the Foundation of the King the Woods of the Bishoprick are called the Dower of the Church and these are alwaies carefully to be preserved and if he fell and destroy this upon a motion thereof made to us says the Lord Coke we will grant a Prohibition And to this purpose there was a great Cause which concerned the Bishop of Duresm who had divers Cole-Mines and would have cut down his Timber-Trees for the maintenance and upholding of his Works and upon motion in Parliament concerning this for the King Order was there made that the Judges should grant a Prohibition for the King and we will here says he revive this again for there a Prohibition was so granted And so upon the like motion made unto us in the like case we will also for the King grant a Prohibition by the Statute of 35 E. 1. If a Bishop cut down Timber-Tres for any cause unless it be for necessary Reparations as if he sell the same unto a Stranger we will grant a Prohibition And to this purpose I have seen said he a good Record in 25 E. 1. where complaint was made in Parliament of the Bishop of Duresm as before for cutting of Timber-Trees for his Cole-Mines and there agreed that in such a case a Prohibition did lie and upon motion made a Prohibition was then granted and the Reason then given because that this Timber was the Dower of the Church and so it shall be also in the case of a Dean and Chapter in which cases upon this ground we will grant as he said Prohibitions and the whole Court agreed with him herein Also in Sakar's case against whom Judgment being given for Simony yet he being by assent of parties to continue in the Vicarage for a certain time this time being now past and he still continuing in possession and committing of great Waste by pulling down the Glass-windows and pulling up of Planks the Court granted a Prohibition and said That this is the Dower of the Church and we will here prohibit them if they fell and waste the Timber of the Church or if they pull down the houses And Prohibition to prevent Dilapidations and to stay the doing of any Waste was in that case awarded accordingly 9. In a Prohibition the Case was this A Vicar lops and cuts down Trees growing in the Church-yard the Churchwardens hinder him in the carriage of the same away and they being in Trial of this Suit The Churchwardens by their Counsel moved the Court for a Prohibition to the Vicar to stay him from felling any more Coke Chief Justice This is a good cause of Deprivation if he fell down Timber-Trees and Wood this is a Dilapidation and by the Resolution in Parliament a Prohibition by the Law shall be granted if a Bishop fells down Wood and Timber-Trees The whole Court agreed clearly in this to grant here a Prohibition to the Vicar to inhibit him not to make spoil of the Timber this being as it is called in Parliament the Endowment of the Church Coke we will also grant a Prohibition to restrain Bishops from felling the Wood and Timber-Trees of their Churches And so in this principal Case by the Rule of the Court a Prohibition was granted CHAP. XVI Of Patrons de jure Patronatus 1. What Patron properly signifies in the Law the Original thereof and how subject to corruption 2. In what case the Bishop may proceed de jure Patronatus and how the Process thereof is to be executed 3. How the Admittance ought to be in case the same Clerk be presented by two Patrons to the same Benefice 4. In what cases of Avoydance Notice thereof ought to be given to the Patron and what course in that case the Bishop is to take in case he knews not the true Patron 5. Several Appellations in Law importing Patron 6. How many waies a Church may become Litigious 7. Whether an Advowson may be extended 8. In what case the Patron may Present where the King took not his turn upon the first Lapse 9. A Patron may not take any benefit of the Glâ—be during a Vacancy 10. In what case the Patron shall not by bringing the Writ of Qua. Imp. against the Bishop prevent the incurring of the Lapse to the Ordinary 11. The King is Patron Paramount and Patron of all the Bishopricks in England The Charter of King John whereby Bishopricks from being Donative became Elective 1. PATRON by the Canon Law as also in the Feuds wherewith our Common Law doth herein accord doth signifie a person who hath of right in him the free Donation or Gift of a Benefice grounded originally upon the bounty and beneficence of such as Founded Erected or Endowed Churches with a considerable part of their Revenue De Jur. Patronat Decretal Such were called Patroni à patrocinando and properly considering the Primitive state of the Church but now according to the Mode of this degenerating Age as improperly as Mons à movendo for by the Merchandize of their Presentations they now seem as if they were rather the Hucksters than Patrons of the Church But from the beginning it was not so when for the encouragement of Lay-persons to works of so much Piety it was permitted them to present their Clerks where themselves or their Ancestors had expressed their Bounty in that kind whence they worthily acquir'd this Right of Jus Patronatus which the very Canon Law for that reason will not understand as a thing meerly Spiritual but rather as a Temporal annexed to what is Spiritual Quod à Supremis Pontificibus proditum est Laicos habere Jus Praesentandi Clericos Ordinariis hoc singulari favore sustinetur ut allectentur Laici invitentur inducantur ad constructionem Ecclesiarum Nec omni ex parte Jus Patronatus Spirituale censeri debet sed Temporale potius Spirituali annexum Gloss in c. piae mentis 16. q. 7. Coras ad Sacerdot mater par 1. cap. 2. Yet not Temporal in a Merchandable sense unless the Presentor and Presentee will run the hazard of perishing together for prevention whereof provision is made by that Solemn Oath enjoyn'd by the Fortieth Canon of the Ecclesiastical Constitutions whereof there was no need in former Ages less corrupt when instead of selling Presentations they purchased Foundations and instead of erecting Idol-Temples for Covetousness is Idolatry they Founded Built and Endowed Churches for the Worship of the True God Patroni in jure Pontificio dicuntur qui alicujus Ecclesiae extruendae c. Authores
the different conditions of the persons of whom they were begotten As when they were begotten by persons of a single and unmarried Estate and of such as were kept as Concubines the Civil Law called them Filii Naturales if begotten of single Women not design'd for Concubines for satisfaction of present Lust then they were called Spurii if begotten of such as the Law styles Scorta or common Harlots by publick profession than they were called Manzeres if begotten of Married Women then they were called Nothi if begotten between Ascendents and Descendents or between Collaterals contrary to the Divine prohibition then they are called Incestuosi 6. Bastardy so stains the Blood that the Bastard can challenge neither Honour nor Arms and so disables him that he cannot pretend to any succession to inheritance The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy but something as to the prosecution thereof The Ecclesiastical Law brings it two ways to Judgment Incidently and Principally the Common Law makes two sorts thereof General and Special Incidently at the Ecclesiastical Law when it is pleaded in Bar to a claim of something in right of Nativity Principally when by reason of some slanderous and reproachful speeches it is brought before the Court as the principal matter in Judgment to be alledged and proved that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge Ad Curiam enim Regiam non pertinet agnoscere de Bastardia General Bastardy at Common Law is so called because it is in gross objected in Barr against a Man to disappoint him in the Principal matter of his Suit Which because it is of Ecclesiastical Cognizance is sent by the Kings Writ to the Ordinary to enquire whether the Party charged with Bastardy were born in or out of Lawful Matrimony And as the Ordinary finds the truth of the matter upon due examination so he pronounceth accordingly in his Consistory whereof he returns Certificate to the Temporal Courts Special Bastardy at the Common Law seems to be only that where the Matrimony is confest but the Priority or Posteriority of the Nativity of him whose Birth is in question is controverted General Bastardy ought to be Tryed by the Bishop and not by the Country But Bastardy in this sense cannot be tryed by the Ordinary otherwise than by vertue of the Kings Writ on some Suit depending in the Temporal Court When Issue is joyn'd on Bastardy before it be awarded to the Ordinary to Try it Proclamation thereof is made in the same Court and after Issue it is certified into Chancery where Proclamation is made once a Month for three Months and then the Lord Chancellour certifies it to the Court where the Plea is depending and after it is Proclaimed again in the same Court that all such whom the said Plea concerns may appear and make their Allegations before the Ordinary whose Certificate of Bastardy is nothing to the purpose unless it come in by Process at the Suit of the Parties And this Bastardy ought to be certified under the Seal of the Ordinary for it is not sufficient to certifie it under the Seal of the Commissary And although the Defendant be certified a Bastard by the Ordinary yet the Certificate shall lose its force if the Plaintiff be afterwards Nonsuit for then the Certificate is not of Record In the Case of Elborough against Allen it was said by Crook that for calling one Bastard generally there is not any sufficient Ground of Action at the Common Law but if there be any special Loss thereby it shall be a good ground of Action at the Comon Law as if a Man be upon Marriage or in treaty for the sale of Land whereby his Title is disparaged Doderidge Justice said That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy and their Judgement is given for the damage which the party had in his birth and for that their Entry is quia laesis est natalitiis And in this Case the Chief Justice said that generally to say J. S. is a Bastard J. S. hath not cause of Action given him thereby but if there be a Temporal cause averr'd the Common Law may proceed therein for though Originally Bastardy be of the Ecclesiastical Jurisdiction not Triable at the Common Law and therefore as in its general nature it is of the Spiritual Jurisdiction so being by its generality no ground of Action at the Common Law yet if one be to sue for a Childs part or sue for the Administration of his Fathers Goods and this be set forth in the Declaration it will maintain an Action at Common Law Doderidge Justice said That to say generally that one called him Bastard is not ground of Action if he doth not shew some special Loss thereby as when a Woman brings her Action and says that she was in Treaty of Marriage and that the Defendant called her Whore this will not maintain an Action unless she say withall that by reason of these words she lost her preferment but Chamberlain Justice said to call a Woman Whore is at this day a sufficient cause of Action for her for that it is punishable by the Statute he also further said that if a Man Libel in the Ecclesiastical Court that he hath Lands by descent and that J. S. call'd him Bastard they may not proceed there or if they do a Prohibition lies He further said that for calling a Man Bastard generally without special Loss alledged Action shall be maintained and Cited a Case in 6 Eliz. Dyer Where a Man recovered red great Dammages for that the Defendant had said that his Father was a Bastard And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not alledge any special cause of Action and yet recovered 7. By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their Mothers Husband were to be accounted legitimate but such as were born in the end thereof were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law and gives us an instance of a Widow in Paris who was delivered of a Child the fourteenth Month after her Husbands death yet the good repute of this Womans continency prevailed so much against the Letter of the Law that the Court Judg'd the causes of Child-birth to be sometimes extraordinary the Woman to be chast and the Child Legitimate Hoc tamen in exemplum trahi facile non oportet as the Gloss there concludes 8. By the Common Law if a Child be born but an hour after the solemnization of Marriage it shall be the Husbands though it were begotten by another Man who was not the Mothers Husband and may be the Heir of him who Married the Mother but a Day
Consistory Among the many Learned Ecclesiedicts who have supplied that Ecclesiastical place William Lindwood who finished his industrious and useful work of the Provincial Constitutions about the year 1433. in the time of K. Henry the Sixth seems to be of the highest Renown his Education was in the University of Cambridge first Scholar of Gonvil then Fellow of Pembrook-hall his younger years he employed in the study of the Imperial and Canon Laws afterwards became Keeper of the Privy Seal unto King Henry the Fifth by whom he was honoured with an Embassie to the Crowns of Spain and Portugal After the Kings death he reassum'd his Officials place of Canterbury and then collected the Constitutions of the Fourteen later Archbishops of Canterbury from Stephen Langton unto Henry Chichley unto whom he dedicated that highly to be esteemed Work his Gloss thereon being in it self as a Canonical Magazine or the Key which opens the Magazine of the whole Canon Law It was printed at Paris An. 1505. at the cost and charges of William Bretton Merchant of London revised by the care of Wolfangus Hippolitus and Prefaced unto by Jodocus Badius This Famous Lindwood was afterwards made Bishop of St. Davids By the Grant of William the Conqueror the Bishops originally had an entire Jurisdiction to judge all Causes relating to Religion for before that time the Sheriff and Bishop kept their Court together He granted also to the Clergy Tithes of Calves Colts Lambs Woods Mills c. So that before the Conquest there were no such Courts in England as we now call Courts Ecclesiastical or Spiritual for Anciently the Bishops sate in Judgment together with the Secular Judges and Sheriffs on the same Tribunal specially about Easter and Michalmass which appears by Mr. Selden in his Notes on Eadmerus pag. 167. as also by the Laws of King Aethelstane Debent Episcopi cum Seculi Judicibus interesse Judiciis ne permittant si possint ut illinc aliqua pravitatum germina pullulaverint Sacerdotibus pertinet in sua Diocoesi ut ad rectum sedulo quemcunque juvent nec patiantur si possint ut Christianus aliquis alii noceat c. Chron. Jo. Bromton de Leg. Aethelst Reg. And in the Preamble to the Laws of that King you will find these words viz. Debet etiam Episcopus sedulo pacem concordiam operari cum Seculi Judicibus Yea long after the Conquest in the Reign of H. 2. An. 1164. by his Laws made at Clarendon the Bishops might interest themselves with the Kings Secular Judges where the matter in Judgment extended not to diminution of Members or were Capital An. 1164. Congregati sunt Praesules Proceres Anglicani regni apud Clarendoniam Rex igitur Henricus c. Then it follows in Lege undecima viz. Archiepiscopi Episcopi c. sicut Barones caeteri debent interesse Judiciis Curiae Regis cum Baronibus usque perveniatur in Judicio ad diminutionem Membrorum vel ad mortem Notwithstanding at the same time the Bishops Ecclesiastical Courts as also the Archdeacons Courts were established in this Kingdom and further ratified and confirmed by these very Laws of King H. 2. made at Clarendon as appears by the Tenth Law and that immediately foregoing the Premisses in haec verba viz. Qui de Civitate vel Castello vel Burgo vel dominico manerio Domini Regis fuerit si ab Archidiacono vel Episcopo de aliquo delicto Citatus fuerit unde debeat eis Respondere ad Citationes eorum noluerit satisfacere bene licet eum sub Interdicto ponere sed non debet c. exinde poterit Episcopus ipsum Accusatum Ecclesiastica Justitia coercere Chron. Gervas de Temp. H. 2. In those daies there was no occasion for that just Complaint which a Learned Pen as a Modern Author observes makes viz. That Courts which should distribute Peace do themselves practice Duells whilst it is counted the part of a Resolute Judge to enlarge the Priviledge of his Court Lord Bacon in his Advanc of Learn p. 463. Aphor. 96. It was with more moderation expressed by him who said It was sad when Courts that are Judges become Plaintiffs and Defendants touching the Bounds of their Jurisdiction In the first Parliament of King Edward the Sixth's Reign it was Enacted That all Process out of the Ecclesiastical Courts should from thenceforth be issued in the Kings Name only and under the Kings Seal of Arms contrary to the usage of former Times But this Statute being Repealed by Queen Mary and not Revived by Queen Elizabeth the Bishops and their Chancellors Commissaries and Officials have ever since exercised all manner of Ecclesiastical Jurisdiction in their own Names and under the distinct Seals of their several Offices respectively Also by the Statute of 25 H. 8. c. 19. it being Enacted That all former Canons and Constitutions not contrary to the Word of God the Kings Prerogative or the Laws and Statutes of this Realm should remain in force until they were review'd by Thirty two Commissioners to be appointed by the King and that Review being never made in that Kings time nor any thing done therein by King Ed. 6. though he had also an Act of Parliament to the same effect the said Ancient Canons and Constitutions remain'd in force as before they were whereby all Causes Testamentary Matrimonial Tithes Incontinency Notorious Crimes of Publick Scandal Wilful absence from Divine Service Irreverence and other Misdemeanours in or relating to the Church c. not punishable by the Temporal Laws of this Realm were still reserved unto the Ecclesiastical Courts as a standing Rule whereby they were to proceed and regulate the Exercise of their Jurisdiction Vid. Heyl. ubi supr p. 2 3. Touching the Ecclesiastical Jurisdiction and what Matters and Causes should be cognizable in the Ecclesiastical Courts of Normandy in the Reign of King Richard the First upon occasion of a Contest inter Ecclesiam ROTHOMAGENSEM WILLIELMUM Filium RADULFI Steward of Normandy it was nigh Five hundred years since finally Accorded Published inter alia Declared by all the Clergy That all Perjuries and Breach of Faith except in case of National Leagues all Controversies relating to Dowries and Donations propter Nuptias quoad Mobilia should be heard and determined in the Ecclesiastical Court it was then also so many hundred years since further Resolved in haec verba viz. Quod distributio eorum quae in Testamento relinquuntur auctoritate Ecclesiae fiet nec Decima pars ut olim subtrahetur It was likewise at the same time and so long since further Resolved That Si quis subitanea morte vel quolibet alio Fortuito Casu praeoccupatus fuerit ut de rebus suis disponere non possit Distributio Bonorum ejus Ecclesiastica auctoritate fiet Radulph de Diceto Hist de Temp. Rich. 1. Regis Of all the Churches in Great Britain that of Saint Pauls London is of the largest structure
complaint thereof made to the Pope the Answer was That any man might be Cited to the Arches out of any Diocess in England Also That the Archbishop may hold his Consistory in any Diocess within his Jurisdiction and Province That the Archbishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Archdeacon and That the Archbishop of Canterbury prescribes to hold Plea of all persons in England But as to his power of having a Consistory in the Diocess of every Bishop this was in this Case denied but only where he was the Popes Legate whereof there were Three sorts 1. Legates à Latere and these were Cardinals which were sent à Latere from the Pope 2. A Legate born and these were the Archbishops of Canterbury York and Mentz c. 3. A Legate given and these have Authority by special Commission from the Pope Likewise in the Case of Jones against Boyer C. B it was also said by Dr. Martyn That the Archbishop hath Ordinary Jurisdiction in all the Diocesses of his Province and that this is the cause that he may Visit 13. The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England from whom the Irish Bishops received their Consecration for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings That Canterbury was the Metropolitan Church of England Scotland and Ireland and the Isles adjacent the Archbishop of Canterbury was therefore sometimes styled a Patriarch and Orbis Britannici Pontifex insomuch that Matters recorded in Ecclesiastical Affairs did run thus viz. Anno Pontificatus Nostri primo secundo c. He was also Legatus Natus that is he had a perpetual Legantine power annext to his Archbishoprick nigh a thousand years since And at General Councils he had the Precedency of all other Archbishops abroad and at home he had some special Marks of Royalty as to be the Patron of a Bishoprick as he was of Rochester to coyn Mony to make Knights and to have the Wardships of all those who held Lands of him Jure Hominii although they held in Capite other â—ands of the King as was formerly hinted He is said to be Inthroned when he is invested in the Archbishoprick And by the Stat. of 25 H 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome not repugnant to the Law of God or the Kings Prerogative As also to allow a Clerk to hold a Benefice in Commendam or in Trust to allow a Clerk rightly qualified to hold Two Benefices with Cure of Souls to allow a Beneficed Clerk for some certain causes to be non-Resident for some time and to Dispense in several other Cases prohibited by the Letters of the Canon Law Likewise the Archbishop of Canterbury Consecrates other Bishops confirms the Election of Bishops within his Province calls Provincial Synods according to the Kings Writ to him ever directed is chief Moderator in the Synods and Convocations he Viâ—its the whole Province appoints a Guardian of the Spiritualties during the vacancy of any Bishoprick within his Province whereby all the Episcopal Ecclesiastical Rights of that Diocess for that time belong to him all Ecclesiastical Jurisdictions as Visitations Institutions c. He may retain and qualifie Eight Chaplains which is more by Two than any Duke is allowed by Statute to do and hath power to hold divers Courts of Judicature for the decision of Controversies pertaining to Ecclesiastical Cognizance CHAP. III. Of Bishops and Ordinaries 1. Bishop Why so called Not above One to be in one Diocess 2. Why called Ordinary and what the Pallium Episcopale is 3. Bishopricks originally Donative Kings of England the Founders thereof 4. The manner of Election of Bishops their Confirmation and Consecration 5. Their Seals of Office in what cases they may use their own Seals 6. What follows upon Election to make them Bishops compleat the grant of their Temporalties 7. The Conge d'eslire and what follows thereupon 8. Bishopricks were Donative till the time of King John 9. What the Interest and Authority is in his several capacities 10. Episcopal Authority derived from the Crown 11. The Vse and Office of Suffragan Bishops 12. Whether a Bishop may give Institution out of his own proper Diocess and under other Seal than his own Seal of Office 13. Several things incident to a Bishop qua talis 14. Ordinary what properly he is and why so called 15. In what cases the Ordinaries Jurisdiction is not meerly Local 16. The Ordinaries power de jure Patronatûs 17. Whether the Ordinary may cite a man out of his own Diocess Also his Right ad Synodalia 18. The Ordinaries power of Visitation 19. The Dignity and true Precedency of the Bishops in England 20. Temporal Jurisdiction anciently exercised by Bishops in this Realm the Statute of 17 Car. 1. against it Repealed and they Restored to it by the Stat. of 13 Car. 2. as formerly 21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops the Endeavours thereby to take away Episcopal Jurisdiction the Nomination of all Bishops was Anciently Sole in the King 22. The Bishops of London are Deans of the Episcopal Colledge 23. A Case at Common Law touching a Lease made by one Bishop during the life of another of the same Diocess in Ireland 1. BISHOP Episcopus from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 supra and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intendere an Overseer or Superintendent so called from that watchfulness care charge and faithfulness which by his Place and Dignity he hath and oweth to the Church A word which all Antiquity hath appropriated to signifie the Chief in Superintendency over the whole Church within his Diocess wherein are divers inferiour Pastors This Oversight or Care the Hebrews call Pekudah Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same Diocess whence it is that Cornelius Bishop of Rome as Eusebius relates upbraided Novatius for his ignorance in that point when he could not but know there were no less than 46 Presbyters in that Church Oecumenius and St. Chrysostome affirming also as many at Philippi For in this restrained sense as the word Bishop is now taken it cannot be imagined that there should be more than one in one City or Diocess at the same time consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City This Novatius aforesaid was a Priest of Rome 254 years after Christ he abhorred Second Marriages and was condemned as an Heretick in a Synod at Rome the same year Every Bishop many Centuries after Christ was universal Incumbent of his Diocess received all the Profits which were but Offerings of Devotion out of which he paid the Salaries of such as Officiated under himâ—
17. is to that purpose 11. In former times many Bishops had their Suffragans who were also Consecrated as other Bishops were These in the absence of the Bishops upon Embassies or in multiplicity of business did supply their places in matter of Orders but not in Jurisdiction These were chiefly for the ease of the Bishops in the multiplicity of their Affairs ordained in the Primitive times called Chorepiscopi Suffragan or Subsidiary Bishops or Bishops Suffragans and were Titular Bishops Consecrated by the Archbishop of the Province and to execute such Power and Authority and receive such profits as were limited in their Commissions by the Bishops or Diocosans whose Suffragans they were What Towns or Places to be the Sees of Bishops Suffragans and how many to a Diocess and in what Diocesses appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop or some other Bishop desire the same In which case the Bishop presents Two able persons for any place allowed by the said Act of Parliament whereof his Majesty doth chuse one but at present there are no Suffragan Bishops in England They were no other than the Chorepiscopi of the Primitive Times Subsidiary Bishops ordained for easing the Diocesan of some part of his burthen as aforesaid by means whereof they were enabled to perform such Offices belonging to that Sacred Function not limited to time and place by the ancient Canons by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper Diocess Of these there were twenty six in the Realm of England distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination The Names and Number whereof together with the Jurisdiction and preheminences proportioned to them the Reader may peruse in the Act of Parliament made An. 26 H. 8. 12. According to the Temporal Laws of this Land if a Bishop grant Letters of Institution under any other Seal than his Seal of Office and albeit it be out of his Diocess yet it is good For in Cort's Case against the Bishop of St. Davids and others where the Plaintiff offered in evidence Letters of Institution which appeared to be sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there and which Letters were made also out of the Diocess It was held That they were good enough albeit they were sealed with another Seal and made out of the Diocess for that the Seal is not material it being an Act made of the Institution And the writing and sealing is but a Testimonial thereof which may be under any Seal or in any place But of that point they would advise 13. A Bishop if he celebrate Divine Service in any Church of his Diocess may require the Offerings of that day He may sequester if the King present not and 12 H. 8. 8. by Pollard he must see the Cure served if the person fail at his own Costs He may commit Administration where Executors being called refuse to prove the Will He hath power of distribution and disposing of Seats and charges of Repairs of the Churches within his Diocess He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other but if he will chuse the Clerk of either at his peril he ought at his peril to receive him that hath Right by the Statute He may License Physicians Chirurgions Schoolmasters and Midwives He may Collate by Lapse He may take competent time to examine the sufficiency and fitness of a Clerk He may give convenient time to persons interested to take notice of Avoidances He is discharged against the true Patron and quit of Disturbance to whom it cannot be imputed if he receive that Clerk that is in pursuance of a Verdict after Inquest in a Jure Patronatus He may have Six Chaplains and every Archbishop may have Eight Chaplains He may unite and consolidate small Parishes and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure joyn and associate himself to the Justices of Oyer and Terminer or to the Justices of Assize at the open and general Sessions to be holden at any place within his Diocess in Causes of the Church And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly and is commonly styled the Ordinary of that Diocess where he doth exercise his Episcopal Authority and Jurisdiction In Parliament Bishops as Barons may be present and Vote at the Trial and Arraignment of a Peer only before Sentence of death or loss of Member be pronounced that they may have no hand in blood in any kind they have by Canon Law the Priviledge and Injunction to absent themselves and by Common Law to make Proxies to vote for them 14. ORDINARY according to the acceptation of the Common Law with us is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical immediate to the King He is in Common understanding the Bishop of the Diocess who is the Supervisor and for the most part Visitor of all his Churches within his Diocess and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his Diocess in jure proprio non per deputationem and therefore it is his care to see that the Church be provided of an able Curate Habet enim Curam Curarum and may execute the Laws of the Church by Ecclesiastical Censures and to him alone are made all Presentations to Churches vacant within his Diocess Ordinarius habet locum principaliter in Episcopo aliis Superioribus qui soli sunt Vniversales in suis Jurisdictionibus sed sunt sub eo alii Ordinarii hi videlicet quibus Competit Jurisdictio Ordinaria de jure privilegio vel consuetudine Lindw cap. Exterior tit de Constitutionib 15. The Jurisdiction of the Ordinary or Bishop as to the Examination of the Clerk or as to the Admission or Institution of him into a Benefice is not Local but it follows the person of the Ordinary or Bishop wheresoever he is And therefore if a Clerk be presented to the Bishop of Norwich to a Church which is void within the Diocess of Norwich who is then in London or if it be to a Bishop of Ireland who is then in England and in London the Ordinary may examine the Clerk or give him Admission or Institution in London And so it was adjudged 16. The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first for as he
Otherwise it is where the Archdearonry is only by Contract or Covenant made between the Bishop and the Archdeacon for in that case if the Bishop so intermeddle within the Jurisdiction of such Archdeacon or hold Plea within the same he can have but an Action of Covenant against the Bishop and no Prohibition lies in that case The Cognizance which the Archdeacon hath is of matters meerly Ecclesiastical to which end he or his Commissary may hold his Court where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry and from him the Appeal is to the Diocesan 3. An Archdeaconryship being only matter of Function and as supposed not properly Local nor any Indenture made of it it hath been some question heretofore whether a Quare Impedit doth lie of it or not But it was held in the Affirmative for that an Archdeacon hath Locum in choro The power of an Archdeacon was derived from the Bishop and to him he is subordinate To which purpose the opinion of the Court in Hutton's Case upon a Quare Impedit was That if a Suit be before an Archdeacon whereof by the Statute of 23 H. 8. the Ordinary may license the Suit to a higher Court that the Archdeacon cannot in such case balk his Ordinary and send the Cause immediately into the Arches for he hath no power to give a Court but to remit his own Court and to leave it to the next for since his power was derived from the Bishop to whom he is subordinate he must yield it to him of whom he received it and it was said in that Case that so it had been ruled heretofore 4. If after the Clerk hath been presented by the Patron and Admitted and Instituted by the Bishop the Archdeacon shall refuse to Induct him into the Benefice an Action upon the Case lieth for the Clerk against the Archdeacon He hath power to keep a Court which is called the Court of the Archdeacon or his Commissary And this Court is to be holden where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry And from him the Appeal is to the Diocesan 5. Although by the Canon Law if one having a Benefice with Cure of Souls accepts an Archdeaconry the Archdeaconry is void yet it is conceived that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reason of a Proviso there viz. Provided that no Deanary Archdeaconry c. be taken or comprehended under the Name of a Benefice having Cure of Souls in any Article above-specified and to this Opinion did Wray and the other Justices incline in Vnderhill's Case And indeed an Archdeaconry by the express Letter of that Statute is exempt from being comprehended under the name of a Benefice with Cure for the words are That no Deanary Archdeaconry Chancellorship Treasurership Chantership or Prebend in any Cathedral or Collegiate Church nor Parsonage that hath a Vicar endowed nor any Benefice perpetually Appropriate shall be taken or comprehended under the name of a Benefice having Cure of Souls 6. By the Ecclesiastical Constitutions and Canons of the Church of England no Archdeacon nor indeed any other Ecclesiastical Judge may suffer any general Process of Quorum Nomina to issue out of his Court Except the Names of those to be cited be first expresly entered by the Register or his Deputy under such Process and both Process and Names first subscribed by such Archdeacon or other Ecclesiastical Judge or his Deputy with his Seal thereto affixed And in places where both the Bishop and Archdeacon do by Prescription or Composition visit at several times in one and the same year the Archdeacon or his Official shall within one month next after the Visitation ended that year and the Presentments received certifie under his hand and Seal to the Bishop or his Chancellor the Names and Crimes of all such as are presented in his said Visitation to the end the Chancellor may not Convent the same person for the same Crime for which he is presented to the Archdeacon which course the Chancellor is in like manner to observe in reference to the Archdeacon after the Bishops Visitation ended The which was Ordained to prevent the Prosecution of the same party for the same fault in divers Ecclesiastical Courts And in cases of remitting Causes from the Inferiour Judge the Archdeacon cannot remit the Cause to the Archbishop but he must remit it to his Bishop and he to the Archbishop Trin. 11 Jac. 7. The Archdeacon within the Jurisdiction of his Archdeaconry may by vertue of his Office have his Visitation if he so please or need shall require once every year but of necessity he is to have his Triennial Visitation Lindw de Offic. Archid. c. 1. verb. Visitatione gloss But whether of Common right and by the Jus Commune the Archdeacon may Visit within the Jurisdiction of his Archdeaconry is some question yet resolved by distinguishing whether the Visitation be made per modum Serutationis simplicis by the Archdeacon as the Bishops Vicar and so he may Visit of Common Right but if in such Enquiries he take upon him nomine suo proprio to correct Faults other than such small ones as wherein Custome may warrant him in such case it is held that he hath not power of Visitation de jure communi Lindw ibid. And in all such things as belong to his Visitation he hath Jurisdiction and by Custome over Lay-persons as well as over the Clergy It seems therefore he may do all such things as without the doing and dispatch whereof his Jurisdiction could not clearly appear L. cui Jurisdictio ff de Jurisd om Jud. and therefore wherever he may take cognizance of a matter there he may also give sentence and condemn Extr. de Caus Poss propr c. cum Super. de Offic. Deleg c. ex Literis which is supposed to hold true by Custome and inasmuch as the cognizance and reformation of such matters do belong to the Ecclesiastical Court whence it is that an Archdeacon may impose a penalty on Lay-men for the not repairing their Parish-Church within his Jurisdiction Extr. eod c. ult Extr. de Offic. Ord. c. 1. Lindw ubi supr verb. Imperitiam For it is expresly enjoyned and ordained That Archdeacons and their Officials shall at their Visitation of Churches take the condition of the Fabrick thereof into special consideration specially of the Chancel and in case there be need of Reparations shall set or fix a time within which such Reparations shall be finished which time is likewise to be set under a certain penalty Lindw de Offic. Archidiac c. Archidiaconi 8. By the Canon Law a man cannot be an Archdeacon under the age of 25 years Can. Nullus in propositum 60 Dist And by the Council of Trent he ought to
Bishops Visitation mutually to certifie each other under their Hands and Seals the Names and Crimes of all such as were Presented in the said Visitation Nor shall any Chancellor or other Ecclesiastical Judge suffer any Judicial Act to be sped otherwise than in open Court or in presence of the Register or his Deputy or other person by Law allowed to speed the same nor shall have without the Bishops consent any more Seals of Office than one Nor shall any man be admitted a Chancellor or to exercise any Ecclesiastical Jurisdiction under the age of 26 years and learned in the Civil and Ecclesiastical Laws and is at least a Master of Arts or Bachelor of Law and shall first have taken the Oath of Supremacy in the Bishops presence or in open Court and have subscribed the Articles of Religion and swear that to the utmost of his understanding he will deal uprightly and justly in his Office without respect favour or reward 4. Sutton Chancellor of the Bishop of Gloucester moved for a Prohibition to stay a Suit before the Commissioners Ecclesiastical for that Articles were there exhibited against him because he being a Divine and having a Rectory with Cure of Souls and never brought up in the Science of the Civil or Canon Laws or having any Intelligence in them took upon him the Office of the Chancellor of the Bishop of Gloucester whereas there were divers Canons and Ecclesiastical Constitutions and also directions from the late King James and from the King that now is That none should be admitted to have those Offices of Chancellorship to a Bishop unless he were instructed and learned in the Canon and Civil Laws because divers Cases triable in the said Court are of weight and the Judges there ought to have knowledge of the Laws otherwise they cannot administer Right to the Kings Subjects Upon these Articles Mr. Sutton being examined confessed that he was a Divine and had a Spiritual Living and that the Office of the Chancellorship of the Bishop is grantable for life and that such a Bishop of Gloucester had granted to him the Office for his life which the Dean and Chapter had Confirmed whereby he had a Freehold therein and ought to enjoy it during his life And that notwithstanding this Answer they intended to proceed against him wherefore he prayed to have a Prohibition but the Court denied it for if he be a person unskilful in these Laws and by Law ought not to enjoy it they may peradventure examine that for although a Lay-person by his Admission and Institution to a Benefice hath a Freehold yet he may be sued in the Spiritual Court and deprived for that Cause but if he hath wrong he may peradventure by Assize try it therefore a Prohibition was denied 5. The Consistory Court of each Archbishop and every Bishop of every Diocess within this Realm is holden before the Bishops Chancellor in the Cathedral Church or before his Commissary in places of his Diocess far remote and distant from the Bishops Consistory so as the Chancellor cannot call them to the Consistory with any conveniency or without great travel and vexation for which reason such Commissary is called Commissarius Foraneus From these Consistories the Appeal is to the Archbishop of either Province respectively 6. By this word Consistory is commonly understood that place or Ecclesiastical Court of Justice held by the Bishops Chancellor or Commissary in his Cathedral Church or other convenient place of his Diocess for the hearing and determining of matters and Causes of Ecclesiastical cognizance happening within that Diocess But when this word refers to the Province of Canterbury then the chief and most ancient Consistory is the Arch-bishops high Court of Arches as the Court of Appeal from all other Inferiour Consistories within the said Province The same word sometimes refers to a Synod or Council of Ecclesiastical persons conven'd together or to a Cession or Assembly of Prelates but most usually to the Spiritual Court for the deciding of matters of Ecclesiastical cognizance The word Consistory Consistorium is supposed to be borrowed of the Italians or rather Lombards signifying as much as Praetorium or Tribunal being a word utriusque juris and frequently used for a Council-house of Ecclesiastical persons or the place of Justice in the Court Christian 7. The Consistories of Archbishops and Bishops are supposed to begin within this Realm in the time of William the Conquerour which seems very conjecturable from that Charter of his which Sir Ed. Coke in the fourth part of his Institutes mentions to have found Enrolled 2 R. 2. nu 5. Which Charter and Record of great Antiquity asserting not only the Episcopal Consistories but also the Ecclesiastical Jurisdiction it cannot be supposed but that it ought to be recited here in terminis per extensum viz. Willielmus gratia Dei Rex Anglorum Comitibus Vicecomitibus omnibus Francigenis quibus in Episcopatu Remigii terras habentibus salutem Sciatis vos omnes caeteri mei Fideles qui in Anglia manent quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum Praecepta usque ad mea tempora in Regno Anglorum fuerunt Communi Concilio Concilio Archiepiscoporum meorum caeterorum Episcoporum Abbatum omnium Principum Regni mei Emendandas judicavi Propterea Mando Regia authoritate Praecipio ut nullus Episcopus vel Archidiaconus de Legibus Episcopalibus amplius in Hundretto Placita teneant nec causam quae ad Regimen animarum pertinet ad Judicium Secularium hominum adducant sed quicunque secundum Episcopales Leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum Hundrettum sed secundum Canones Episcopales Leges Rectum Deo Episcopo suo faciat Si vero aliquis per superbiam elatus ad Justitiam Episcopalem venire non voluerit vocetur semel secundo tertio quod si nec sic ad emendationem venerit Excommunicetur si opus fuerit ad hoc vindicand ' fortitudo Justitia Regis vel Vicecomitis adhibeatur Ille autem qui vocatus ad Justitiam Episcopi venire noluit pro unaquaque vocatione legem Episcopalem emendabit hoc etiam Defendo mea authoritate interdico ne ullus Vicecom aut praepositus aut minister Regis nec aliquis Laicus homo de Legibus quae ad Episcopum pertinent se intromittat nec aliquis Laicus homo alium hominem sine Justitia Episcopi ad Judicium adducat Judicium vero in nullo loco portetur nisi in Episcopali Sede aut in illo loco quem ad hoc Episcopus constituerit 8. For the Confirmation of this Charter Sir Ed. Coke in the foresaid part of his Institutes refers us to the Register of
them offend in any of the Premisses the persons deputing them if they be Bishops shall upon Admonition of their Superiour discharge the persons exceeding the Number so limited as aforesaid But if they were deputed by Inferiour Ordinaries such Ordinaries shall be suspended from the execution of their Office until they have dismiss'd the supernumerary Apparitors by them so deputed and the parties themselves so deputed shall for ever be removed from the Office of Apparitors And in case being so dismiss'd and removed they do not desist from the execution of their said Offices they are by the first said Canon to be proceeded against and punished by Ecclesiastical Censures as persons contumacious to the Jurisdiction And finally if upon experience the number of the said Apparitors be too great in any one Diocess in the judgment of the Archbishop of Canterbury for the time being in that case he is by the said Canon impower'd to abridge them to such a number as to himself shall seem meet and expedient An Apparitor came to the Church of a Parson and said to him He is to pay Tenths to such a one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop Certified That he refused to pay them according to the Statute of 26 H. 8. It was Resolved The Demand was not according to that Statute and the Summons to pay them not according to the Statute for the Demand ought to have been by one who hath authority to receive them which the Summoner had not And they held the Demand not good although the Bishop certified it was duly made And in the Case between the Queen and Blanch it was Resolved That the Certificate of the Bishop that the Incumbent refused to pay his Tenths is not Peremptory but Traversable and that the Demand of the Tenths must be at the house of the Incumbent and the Refusal there More 's Rep. 1225. In a Action upon the Case against the Defendant the Case was this A Summoner in the Ecclesiastical Court having a Citation against the Plaintiff Returned That he had Summoned the Plaintiff whereas in truth he never Summoned him for which the Plaintiff was Excommunicated to his great dammage It was adjudged that the Action did lie 13. By the Premisses it is manifest that the Canon is very strict and exact both in abridging the Number and redressing the Abuses incident to the Office of Apparitors which Canon in most Circumstances seems to run very parallel with that in the Provincial Constitutions Lindw Provin Constit de Censibus Procur cap. cum Apparitorum the light whereof did probably influence it into that Form wherein we now find it For by that Decree of the said Provincial Constitunions it is Ordained That a Bishop shall have unum Apparitorem Equitantem duntaxat where the Gloss well observes that by this non prohibetur Episcopo quin plures habeat pedites And every Archdeacon one in every Deanary non Equitantem sed peditem where the Bishop might also appoint Apparitors as also in Rural Deanaries Gloss ibid. verb. Duntaxat And in case more than these were Deputed or they found to offend in their Office the Penalty was as above-said Deputantes sint suspensi donec c. Deputatos ab Officio Apparitorum perpetuo suspendimus ipso facto Constit ibid. 14. Action upon the Case For that the Defendant being an Apparitor under the Bishop of Exeter maliciously and without colour or cause of suspicion of Incontinency of his own proper malice procured the Plaintiff Ex Officio upon pretence of Fame of Incontinency with one Edith whereas there was no such Fame not just cause of Suspicion to be cited to the Consistory Court of Exeter and there to be at great charges and vexation until he was cleared by Sentence which was to his great discredit and cause of great Expences and Losses for which c. upon Not guilty pleaded and found for the Plaintiff it was moved by Ashley Serjeant in Arrest of Judgment That in this Case an Action lies not For he did nothing but as an Informer and by virtue of his Office But all the Court absente Richardson held That the Action well lies For it is alledged That he falso malitiose caused him to be Cited upon pretence of Fame where there was no offence committed And avers That there was not any such Fame so as he did it maliciously and of his own head and caused him to be unjustly vexed which was to raise gain to himself whereupon they conceived That he being found guilty for it the Action well lies And therefore Rule was given to enter Judgment for the Plaintiff unless other cause was shewn And upon a second motion Richardson Ch. Justice being present Judgment was given for the Plaintiff The Consistory of the Bishop may in some Cases enjoyn Penance Where Penance is enjoyned there may be Commutation but there may not be Commutation for Penance where none is enjoyned Commutation for Penance agrees with the Customes used in the Ecclesiastical Law justified in the Common Law in the Statute of Circumspecte agatis in the time of Ed. 1. and Articuli Cleri in the time of Ed. 2. Vid. Mich. 21. Jac. B. R. Dr. Barker 's Case in Camera Stellata Roll's Rep. 15. Commissary Commissarius is a Title of Ecclesiastical Jurisdiction adapted to such one as doth exercise the same in such remote places of the Diocess and at such distance from the Bishops chief Consistory as that his Chancellor cannot without too great a prejudice conveniently call the Subjects to the same The duty of such Commissary or Officialis Fâ—ranei is to officiate the Bishops Jurisdiction in the remoter parts of the Diocess or in such Parishes as are the Bishop's peculiar and exempt from the Archdeacon's Jurisdiction The Authority of the Commissaries of Bishops is only in some certain place of the Diocess and some certain causes of the Jurisdiction limited unto them by the Bishops for which reason the Law calls them Officiales Foraneos quasi Officiales astricti cuidam foro Dioeceseos tantum Gloss in Clem. de Rescript And by the Canons and Constitutions Ecclesiastical no person may be a Commissary or Official under the Age of 26 years being at least a Master of Arts or Bachelor of Law Yet in the Argument of Buries Case for a Divorce the 5 Rep. 98. there was cited 35 Eliz. B. R. rot 605. That if a Lay-man be made a Commissary by the Bishop it is good until it be undone by Sentence although that the Canon says That he ought to be a Doctor or a Bachelor of Divinity But 21 H. 8. hath limited That a Doctor of the Civil Law may be a Commissary 16. Where a Commissary citing many persons of several Parishes to appear at his Visitation-Court Excommunicated them for not Appearing a Prohibition was granted because the Ordinary hath not
exempted out of the Bishop of London's Jurisdiction The Judge of this Court of Arches is styled the Dean of the Arches or the Official of the arches-Arches-Court unto whose Deanary or Officialty to the Archbishop of Canterbury in all matters and causes Spiritual is annexed the Peculiar Jurisdiction of the thirteen Parishes as aforesaid Having also all Ordinary Jurisdiction in Spiritual causes of the first Instance with power of Appeal as the superiour Ecclesiastical Consistory through the whole Province of Canterbury yet the Lord Coke says his power to call any person for any Cause out of any part of his Province within the Diocess of any other Bishop except it be upon Appeal is restrained by the Stat. of 23 H. 8. c. 9. Yet his Jurisdiction is Ordinary and extends it self through the whole Province of Canterbury insomuch that upon any Appeal made to him from any Diocess within the said Province he may forthwith without further examination at that time of the Cause issue forth his Citation to be served on the Appealee with his Inhibition to the Judge à quo In Mich. 6 Jac. C. B. there was a Case between Porter and Rochester The Case was this Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tithes growing in B. in the said County of Essex by Porter in the Court of Arches of the Archbishop of Canterbury in London where the Archbishop hath a peculiar Jurisdiction of thirteen Parishes called a Deanary exempt from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the chief And a great Question was moved Whether in the said Court of Arches holden in London he might cite any dwelling in Essex for subtraction of Tithes growing in Essex or whether he be prohibited by the Statute of 23 H 8. c. 9 Which after debate at Bar by Council and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common Pleas A Prohibition was granted to the high Court of Arches And in this case divers points were resolved by the Court 1 That all Acts of Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civilians and Canonists although the Acts concern Ecclesiastical Jurisdiction 2 Resolved by Coke Chief Justice Warburton Daniel and Foster Justices That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to cite any one out of his own Diocess For Diaecesis dicitur distinctio c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus Commissa gubernatio unius c. And is derived a Di Duo Electio quia separat duas Jurisdictiones And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London for this cause it is fitly said in the Title Preamble and body of the Act that when the Archbishop sitting in his Exempt peculiar in London cites one dwelling in Essex he cites him out of the Bishop of London's Diocess Therefore out of the Diocess And in the clause of the penalty of 10 l. it is said Out of the Diocess c. where the party dwelleth which agrees with the signification of Diocess before 2. The body of the Act is No person shall be henceforth cited before any Ordinary c. out of the Diocess or peculiar Jurisdiction where the person shall be dwelling and if so then à Fortiori the Court of Arches which sits in a Peculiar may not cite others out of another Diocess And the words out of the Diocess are meant of the Diocess or Jurisdiction of the Ordinary where he dwelleth And from the Preamble of the Act the Lord Coke observes and inferrs That the intention of the Act was to reduce the Archbishop to his proper Diocess unless in these five Cases viz. 1 For any Spiritual offence or cause committed or omitted contrary to Right and Duty by the Bishop c. which word omitted proves there ought to be a default in the Ordinary 2 Except it be in Case of Appeal and other lawful cause where the party shall find himself grieved by the Ordinary after the matter there first begun Therefore it ought to be first begun before the Ordinary 3 In case the Bishop or Ordinary c. dare not or will not Convent the party to be sued before him 4 In case the Bishop or Judge of the place within whose Jurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the matter or cause of the same Suit 5 In case any Bishop or other inferiour Judge under him c. make Request to the Archbishop Bishop or other inferiour Ordinary or Judge and that to be done in Cases only where the Law Civil or Common doth affirm c. The Lord Coke takes notice also of Two Provisoes in that Act which do likewise explain it viz. That it shall be lawful for every Archbishop to cite any person inhabiting in any Bishops Diocess in his Province for matter of Heresie By which says he it appears That for all causes not excepted he is prohibited by the Act. 2 There is a Saving for the Archbishop calling any person out of the Diocess where he shall be dwelling to the probat of any Testament Which Proviso should be vain if notwithstanding that Act he should have concurrent Jurisdiction with every Ordinary throughout his whole Province Wherefore it was concluded That the Archbishop out of his Diocess unless in the Cases excepted is prohibited by the 23 H. 8. c 9. to cite any man out of any other Diocess which Act is but a Law declaratory of the Ancient Canons and a true Exposition thereof as appears by the Canon Cap. Romana in Sext. de Appellat c. de Competenti in Sext. And as the Lord Coke observes the Act is so expounded by all the Clergy of England at a Convocation at London An. 1 Jac. 1603. Can. 94. who gives us further to understand in this Case between Porter and Rochester That the Archbishop of this Realm before that Act had power Legantine from the Pope By which they had Authority not only over all but concurrent Authority with every Ordinary c. not as Archbishop of Canterbury c. but by his Power and Authority Legantine Et tria sunt genera Legatorum 1 Quidam de Latere Dom. Papae mittuntur c. 2 Dativi qui simpliciter in Legatione mittuntur c. 3 Nati seu Nativi qui suarum Ecclesiarum praetextu Legatione funguntur sunt Quatuor viz. Archiepiscopus Cantuariensis Eboracensis Remanensis Pisanis Which Authority Legantine is now taken away and utterly abolished 4. It is supposed that the Judge of this Court was originally styled the Dean of the Arches by reason of his substitution to the Archbishop's Official when
s. 6 d. to the Scribe for Registring the same or else the said Scribe to be at his liberty to refuse the said 2 s. 6 d. and to have for writing every ten Lines of the same Testament whereof every Line to contain ten inches one penny If the Executor desire that the Testament in paper may be transcribed in parchment he must agree with the party for the Transcribing but the Ordinary c. can take nothing for that nor for the Examination of the Transcript with the Original but only 2 s. 6 d. for the whole duty belonging to him Where the Goods of the deceased do not exceed five pound the Ordinary c. shall take nothing and the Scribe to have only for writing of the Probat six pence so the said Testament be exhibited in writing with Wax thereunto affixed ready to be sealed Where the Goods of the deceased do amount to above the value of five pound and do not exceed the sum of forty pound there shall be taken for the whole but 3 s. 6 d. whereof to the Ordinary c. 2 s. 6 d. and 12 d. to the Scribe for Registring the same Where by Custome less hath been taken in any of the Cases aforesaid there less is to be taken And where any person requires a Copy or Copies of the Testament so proved or Inventory so made the Ordinary c. shall take for the Search and making of the Copy of the Testament or Inventory if the Goods exceed not five pound six pence and if the Goods exceed five pound and exceed not forty pounds twelve pence And if the Goods exceed forty pounds then two shillings six pence or to take for every Ten lines thereof of the proportion before rehearsed a penny And when the party dies Intestate the Ordinary may dispose somewhat in pious uses notwithstanding the Act of 31 Ed. 3. but with these Cautions 1 That it be after the Administration granted and Inventory made so as the state of the Intestate may be known and thereby the sum may appear to be competent 2 The Administrator must be called to it 3 The use must be publick and godly 4 It must be expressed in particular And 5 There must be a Decree made of it and entred of Record 7. The Court of Audience Curia Audientiae Cantuariensis The Lord Coke touching the Jurisdiction of Courts taking notice of this of the Audience among other of the Ecclesiastical Courts says That this Court is kept by the Archbishop in his Palace and meddleth not with any matter between party and party of any contentious Jurisdiction but dealeth with matters pro forma and Confirmations of Bishops Elections Consecrations and the like and with matters of voluntary Jurisdiction as the granting of the Guardianship of the Spiritualties Sede vacante of Bishops Admissions and Institutions to Benefices dispensing with Banns of Matrimony and such like This Court did belong to the Archbishop of Canterbury and was in point of Authority equal with but in point of Dignity and Antiquity inferiour to the Court of Arches It seems that Anciently the Archbishop of Canterbury did hear divers Causes of Ecclesiastical cognizance Extra-judicially and at home in his own Palace wherein before he would come to any final determination his usage was to commit the discussion thereof to certain persons learned in the Laws Civil and Canon who thereupon were styled his Auditors whence in process of time it center'd in one particular person styled Causarum Negotiorumque Audientiae Cantuariensis Auditor seu Officialis And from hence the Original of this Court is properly derived With this office of the Auditor the Chancery of the Archbishop is said to have been heretofore commonly joyned not controverting any matters of contentious Jurisdiction in any decisions of Causes between Plaintiff and Defendant but such only as were Voluntariae Jurisdictionis ex Officio touching such things only as are fore-specified and such like By the Provincial Constitutions it is Ordained That for the ease of the People they may at times convenient to be assigned by the Bishop have access to their Diocesan Et quod Praelati persâ—â— liter Audiant quaerelas in his Cathedral or next Parochial Church vel in aliqua Maneriorum suorum Capella si talis fuerit Lindw de Offic. Jud. Ord. cap. Statuimus in gloss verb. in Publico It seems not altogether improbable but that from the practice hereof this Court of Audience anciently had its Original as aforesaid And although it be not now in use as heretofore yet considering the Subject-matter it only took cognizance of it was a good Expedient to prevent many Suits at Law in Foro Contentioso 8. Faculty or Court of Faculties in the sense here meant and intended must not be understood according to its original and genuine signification but as a term of Art according to a limited construction restrained under that peculiar notion and particular understanding which the Law hath of it in reference to a branch of the Ecclesiastical Jurisdiction And so it is understood and commonly used for that Priviledge or especial Power which is legally granted to a man by License favour indulgence and dispensation to have or do that which otherwise by the Canon Law he could not as to eat Flesh upon days prohibited to Marry without Banns first published to hold Two or more Ecclesiastical Benefices incompatible the Son to succeed the Father in his Benefice and such like A Faculty granted to one who is not Incumbent to take a void Benefice is void But a Faculty to one who is Incumbent of a Benefice to retain the same is good It is called Faculties in the Statute of 28 H. 8. cap. 16. Sir Ed. Coke makes mention of the Court of Faculties although it holds no Plea of Controversie It belongs to the Archbishop of Canterbury and his chief Officer thereof is called Magister ad Facultates whose power is to grant Dispensations to the ends and purposes aforesaid and so may every Diocesan as to that of Marriage and eating of Flesh on days prohibited Faculty according to Sir Ed. Coke in the place fore-cited signifies a Dispensation so that Facultates in this sense Dispensationes Indulta are Synonyma Who likewise there says that this Authority was raised and given to the Archbishop of Canterbury by the Statute of 25 H. 8. c. 21. whereby Authority is given to the said Archbishop and his Successors to grant Dispensations Faculties c. by himself or his sufficient and substantial Commissary or Deputy for any such matters commonly called the Master of the Faculties and of all such matters as whereof heretofore such Dispensations Faculties c. then had been accustomed to be had at the See of Rome or by Authority thereof For by the Stat. of 28 H. 8. c. 16. it appears the Bishop of Rome did grant Faculties and Dispensations to the Kings Subjects as Pluralities Unions Trialities Appropriations Commendams Exemptions
1 Eliz. And it is not within the Statute and although it be within the Commission yet they have not Jurisdiction The words of the Statute are That such Jurisdictions and Priviledges c. as by any Ecclesiastical power have heretofore been or lawfully may be exercised for the Visitation of Ecclesiastical State and Persons and for reformation of the same and for all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities c. These words extend only to men who stir up Dissentions in the Church as Schisimaticks and new-sangled Men who offend in that kind Henden Serjeant The Suit is there for reformation of Manners and before the new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of Defamations but now by express words they have power of these matters And that matter is punishable by the Commissioners for two Causes 1 There is within the Act of Parliament by the words annexed all Jurisdictions Ecclesiastical c. 2 It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Jurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said The Statute de Articulis Cleri gave cognizance to the Ordinary for laying violent hands on a Clerk But you affirm That all is given to the Commissioners and thereby they should take all power from the Ordinary But by the Court the Commissioners cannot meddle for a stroke in Church-Land nor pro subtractione Decimarum And yet they have express Authority by their Commission for by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christmas-day it was said by Richardson Chief Justice That upon Arresting a man upon Christmas-day going to Church in the Church-yard He who made the Arrest may be censured in the Star-Chamber for such an Offence Quod Nota. It was also said by Richardson that if a man submit himself out of the Diocess to any Suit he can never have a Prohibition because the Suit was not according to the Statute 23 H. 8. commenced within the proper Diocâ—ss as it was Adjudged Quod Nota It the Ecclesiastical Court proceed in a matter that is meer Spiritual and pertinent to their Court according to the Civil Law although their proceedings are against the Rules of the Common Law yet a Prohibition does not lie As if they refuse a single Witness to prove a Will for the cognizance of that belongs to them And Agreed also That if a man makes a Will but appoints no Executor that that is no Will but void But if the Ordinary commits the Administration with that annexed the Legatary to whom any Legacy is devised by such Will may sue the Administrator for their Legacies in the Ecclesiastical Court Note P. 4. Jac. B. R. Peep's Case a Prohibition was denied where they in the Ecclesiastical Court refused a single Witness in proof of payment of a Legacy After Prohibition if the Temporal Judge shall upon sight of the Libel conceive that the Spiritual Court ought to determine the cause he is to award a Consultation And by the Staâ— of 50 E. 3. c. 4. the Ecclesiastical Judge may proceed by vertue of the Consultation once granted notwithstanding any other Prohibition afterwards if the matter in the Libel be not enlarged or changed B. Administrator of A. makes C. his Executor and dies C. is sued in the Ecclesiastical Court to make an Account of the goods of A. the first Intestate And C. now moves for a Prohibition and had it for an Executor shall not be compel'd to an Account But an Administrator shall be compel'd to Account before the Ordinary Resolved by the Court That a Prohibition shall not be awarded to the Admiral or Ecclesiastical Courts after Sentence Also that a Plea was there pleaded and refused which was Triable at Common Law Note A Prohibition was awarded upon the Statute of 23 H. 8. because the party was sued out of the Diocâ—ss And now a Consultation was prayed because the Interiour Court had remitted that Cause to the Arches and their Jurisdiction also yet a Consultation was denied A Suit was in the Ecclesiastical Court and Sentence passed for one with Costs and nine months after the Costs are Assest and Taxed and then comes a Pardon of 21 Jac. which relates before the taxing of the Costs But afterwards the Sentence and that Pardon was pleaded and allowed in discharge of the Costs Then W. who had recovered sues an Appeal and P. brought a Prohibition and well and no Consultation shall be awarded because by the Court that Pardon relating before the Taxation of Cost had discharged them As 5. Rep. 51. Hall's Case B. and Two others sue upon three several Libels in the Ecclesiastical Court and they joyn in a Prohibition And by the Court that is not good But they ought to have had three several Prohibitions and therefore a Consultation was granted Mich. 26 27 Eliz. C. B. If A. Libels against B. for Three things by one Libel B. may have One or Three Prohibitions Note Dyor 171. 13. By the Statute of 25 H. 8. cap. 19. Appeals to Rome being prohibited it is Ordained That for default of Justice in any of the Courts of the Archbishops of this Realm c. it shall be lawful to Appeal to the King in his High Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is granted to the King in Chancery on Sentences in places exempt in such manner as was used before to the See of Rome So that this Court grounded on the said Commission is properly as well as vulgarly called The Court of Delegates for that the Judges thereof are Delegated to fit by virtue of the Kings said Commission under his Great Seal upon an Appeal to him in Chancery and that specially in Three Causes 1 When a Sentence is given in any Ecclesiastical Cause by the Archbishop or his Official 2 When any Sentence is given in any Ecclesiastical Cause in places exempt 3 When a Sentence is given in the high Court of Admiralty in Suits or Actions Civil and Maritime according to the Civil Law That this Court of Delegates may Excommunicate was Resolved by all the Judges in the Archbishop of Canterbury's Case They may also commit or grant Letters of Administration This Court of Delegates is the highest Court for Civil Affairs that concern the Church for the Jurisdiction whereof it was provided 25 H. 8. That it shall be lawful for any Subject of England in case of defect of Justice in the Courts of the Archbishop of Canterbury to Appeal to the King's Majesty in his Court of Chancery and
sue the Parishioner in the Ecclesiastical Court for Tithes in kind no Prohibition to be granted on that discharge by Deed for they may well try that having cognizance of the Principal If a Parson Lease all the Tithes of his Benefice to the Parishioner and after sue him in the Ecclesiastical Court for his Tithes in his hands no Prohibition to be granted for the Lease is a good discharge there Likewise if the Parishioner grant Land to the Parson for and in lieu of his own Tithes and after the Parson sue him in the Ecclesiastical Court for the Tithes no Prohibition to be granted for that matter will be a good discharge there If a Parson sue for Tithes in the Ecclesiastical Court and the Defendant there plead an Arbitrement in Bar they shall try that there and no Prohibition to be granted upon that c. for by intendment it is a good discharge there Likewise if a Parson sue for Tithes in the Ecclesiastical Court and the Defendant there plead a Lease of them by Deed by the Parson to him rendring Rent to which the Plaintiff says the Rent was reserved upon condition of Non-payment to be void and averrs that it was not paid at a certain day and the other pleads payment at the day This shall be tryed there and no Prohibition granted If a Parson Lease by Deed the Tithes of the Parish and after sues for the Tithes in the Ecclesiastical Court and there the Lease is pleaded where the Question between them is Whether it be the Tithes of the whole Parish or only of some particular things yet no Prohibition lies for they have cognizance of the Original but if they judge contrary to the Common Law a Prohibition lies after Sentence If a man sue for a Legacy in the Ecclesiastical Court and the Defendant plead a Release in Bar and the Plaintiff deny it that shall be tryed there for that it arises from the Original cause whereof they have the Jurisdiction If an Administrator sue for a Legacy due to the Deceased in the Ecclesiastical Court and the Defendant plead the Release of the Deceased in Bar and the Plaintiff avoid it for that the Deceased was an Ideot That Ideocy shall be tryed there and no Prohibition granted for that they have Jurisdiction of the Original matter If a Parson sue in the Ecclesiastical Court and the Defendant there plead that the Plaintiff was presented upon a Simonaical Contract against the Stat. of 31 Eliz. That shall be tryed there for that they have Jurisdiction of the Original thing But the Ecclesiastical Court can take no cognizance of a Custome whereby the Inheritance is perpetually charged although the thing Customable be cognizable by them And therefore if the Church-wardens of the Parish of S. Libel in the Ecclesiastical Court against J. S. Farmer of the Farm of D. for a Contribution to the Reparation of the Church and alledge that part of the Farm lies in the Parish of S. and part thereof in the Parish of W. and alledge a Custome that the Farmers of the said Farm have used time out of mind to contribute to the Reparation of the Church of S. throughout the whole Farm if the Defendant saith that part of the Land of the said Farm lieth within the Parish of W. and that it had used time out of mind c. for that part to contribute to the Church of W. and not to S. and so deny the said Prescription This shall not be Tryed in the Ecclesiastical Court but at the Common Law and for that a Prohibition lies for they shall not try a Custome in the Ecclesiastical Court by which the Inheritance is to be perpetually charged If A. the Parson of D. sue for Tithes in the Ecclesiastical Court against B. who pleads a Lease for years made to him by the Parson To which A. the Parson Replies That he was Non-resident and absent 80 days and more in such a year c. from his Benefice by which the Lease became void No Prohibition lies upon that plea for that it is grounded on the Statute of 13 Eliz. and although it was Objected That the Judges Ecclesiastical shall not have the Exposition of a Statute yet for that they have Jurisdiction of the Original cause they shall have power to try that which incidently doth arise from thence and the Prohibition was denied 18. A Prohibition was prayed upon the Statute of 23 H. 8. for suing for a Legacy of ten pounds in the Prorogative Court whereas the party did dwell in another Diocess but because the Will was proved in that Court and there Sentence was given for the Legacy and an Appeal upon the Sentence to the Delegates where it was affirmed and endeavour was to stay the Suit by the Statute the party having so long allowed of the Jurisdiction of the Court Adjudged the party came too late now to have a Prohibition 19. In Norwood's Case it was held That where a man is sued in the Ecclesiastical Court for slanderous words a General Pardon doth not aid the party for staying the Suit there which is for or ad instantiam partis But contrary where the party is sued there ex officio Judicis 20. In order to a Prohibition it was surmised That the Defendant was a Clerk and assaulted his Servant and he coming to keep the Peace and to aid his Servant laid his hands peacably upon the Defendant for which he sued him in the Ecclesiastical Court where he pleaded this matter and they would not allow of his plea It was said by the Justices That this Case was out of the Statute of Articuli Cleri Circumspecte agatis for here the party had Quaere by what Law for this is not in the Case of Se Defendendo good cause to beat the Clerk and a Prohibition was granted 21. By the Justices if Issue be joyned whether a Church be void by Cession Deprivation or Resignation it shall be Tried by the Countrey because it is a thing mixt for the Avoidance is Temporal and the Deprivation is Spiritual But habilitie Bastardy ne unque accouple en Loyal Matrimony shall be tried by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the Writ shall be tried by the Country 22. A Sentence was given definitive in the Ecclesiastical Court in a Suit there for Tithes pro triplici valore a Prohibition was prayed a special Prohibition was awarded That they should not proceed to the Execution of the Sentence as to the treble value because that Court is not to give the treble value but the double value only 23. In a Case between a Parson and Church-wardens against one Reynolds it was suggested That all those who had the House wherein the said Reynolds did dwell had used to find meat and drink for the Parson and them going in Procession in Rogation-week at his house and
and used in part by several Nations he compiled them into Volumes and called them Jus Canonicum and Ordained that they should be read and expounded in publick Schools and Universities as the Imperial Law was read and expounded and commanded that they should be observed and obeyed by all Christians on pain of Excommunication and often endeavoured to put them in execution by Coercive power and assumed to himself the power of interpreting abrogating and dispensing with those Laws in all the Realms of Christendom at his pleasure so that the Canonists ascribe to him this prerogative Papa in omnibus jure positivis in quibusdam ad jus divinum pertinentibus dispensare potest quia dicitur omnia Jura habere in Scrinio pectoris sui quantum ad interpretationem dispensationem Lib. 6. de Const cap. licet About the time of An. 25. Ed. 1. Simon a Monk of Walden began to read the Canon Law in the University of Cambridge vid. Stow and Walsingham in that year Also the Manusc libr. 6. Decretal in New-Colledge Library at Oxford hath this Inscription in the Front Anno Domini 1298. which was in the year 26 Ed. 1. 19. Novembr in Ecclesia Fratrum Praedicator Oxon. fuit facta publicatio lib. 6. Decretal whereby it appears when it was that the Canon Law was introduced into England But the Jurisdiction which the Pope by colour thereof claimed in England was a meer Usurpation to which the Kings of England from time to time made opposition even to the time of King H. 8. And therefore the Ecclesiastical Law which Ordained That when a man is created a Bishop all his Inferiour Benefices shall be void is often said in the Bishop of St. David's Case in 11 H. 4. to be the Ancient Law of England And 29 Ed. 3. 44. a. in the Case of the Prebend of Oxgate it is said That though the Constitution which ousts Pluralities began in the Court of Rome yet a Church was adjudged void in the Kings Bench for that cause or reason whereby it appears That after the said Constitution was received and allowed in England it became the Law of England Yet all the Ecclesiastical Laws of England were not derived from the Court of Rome for long before the Canon Law was authorized and published in England which was before the Norman Conquest the Ancient Kings of England viz. Edgaâ— Aethelstan Alfred Edward the Confessor and others have with the Advice of their Clergy within the Realm made divers Ordinances for the government of the Church of England and after the Conquest divers Provincial Synods have been held and many Constitutions have been made in both Realms of England and Ireland All which are part of our Ecclesiastical Laws at this day Vid. Le Charter de William le Conqueror Dat. An. Dom. 1066. irrot 2 R. 2. among the Charters in Archiv Turris Lond. pro Decano Capitulo Lincoln Willielmus Dei gratia Rex Anglorum c. Sciatis c. Quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum praecepta usque ad mea tempora in Regno Angliae fuerunt Communi Concilio Episcoporum meorum caeterorum Episcoporum omnium Principum Regni mei emendandas judicavi c. See also Girald Cambrens lib. 2. cap. 34. in the time of King H. 2. a Synod of the Clergy of Ireland was held at the Castle wherein it was Ordained Quod omnia divina juxta quod Anglicana observat Ecclesia in omnibus partibus Hyberniae amodo tractentur Dignum enim justissimum est ut sicut Dominum Regem ex Anglia divinitus sortita est Hybernia sic etiam exinde vivendi formam accipiant meliorem But the distinction of Ecclesiastical or Spiritual Causes from Civil and Temporal Causes in point of Jurisdiction was not known or heard of in the Christian World for the space of 300 years after Christ For the causes of Testaments of Matrimony of Bastardy and Adultery and the rest which are called Ecclesiastical or Spiritual Causes were meerly Civil and determined by the Rules of the Civil Law and subject only to the Jurisdiction of the Civil Magistrate But after the Emperours had received the Christian Faith out of a zeal they had to honour the learned and godly Bishops of that time they singled out certain special Causes wherein they granted Jurisdiction unto the Bishops viz. in Causes of Tithes because they were paid to men of the Church in Causes of Matrimony because Marriages were for the most part solemnized in the Church in Causes Testamentary because Testaments were many times made in extremis when Church-men were present giving Spiritual comfort to the Testator and therefore were thought the fittest persons to take the Probats of such Testaments Howbeit these Bishops did not then proceed in these Causes according to the Canons and Decrees of the Church for the Canon Law was not then known but according to the Rules of the Imperial Law as the Civil Magistrate did proceed in other Causes so that the Primitive Jurisdiction in all these Causes was in the Supream Civil Magistate and though it be now derived from him yet it still remaineth in him as in the Fountain CHAP. XII Of Churches Chappels and Church-yards 1. Ecclesia what that word imports the several kinds thereof 2. Possessions of the Church protected by the Statute-Laws from Alienation the care of the Emperour Justinian in that point 3. To whom the Soyl and Freehold of the Church and Church-yard belong to whom the use of the Body of the Church to whom the disposal of the Pewes or Seats and charges of Repairs 4. The Common Law touching the Reparation of Churches and the disposal of the Seats therein 5. The same Law touching Isles Pictures Coats of Arms and Burials in Churches also of Assaults in Churches and Church-yard 6. The penalty of quarreling chiding brawling striking or drawing a Weapon in the Church or Church-yard 7. Where Prescription to a Seat in a Church is alledged the Common Law claims the cognizance thereof 8. The Immunities anciently of Church-Sanctuary as also of Abjuration now abrogated and taken away by Statute 9. The defacing of Tombs Sepulchres or Monuments in Churches punishable at the Common Law also of Right to Pewes and Seats in the Church 10. The Cognizance of Church-Reparations belongs to the Ecclesiastical Court 11. A Prohibition upon a surmize of a custome or usage for Contribution to repair a Church 12. Church-wardens are a Corporation for the Benefit not for the Prejudice of the Church 13. Inheritance cannot be charged with a Tax for Repairs of the Church nor may a perpetual charge be imposed upon Land for the same 14. When the use of Church-Books for Christnings first began 15. Chappel the several kinds thereof The Canonists Conceits touching the derivation of that word 16. Where two Parochial Churches are united the charge of Reparations shall be several as before 17. The Emperour Justinian's
therein for the Indictment concluding contra formam Statuti It cannot be good as for an offence at the Common Law But afterwards another Exception was taken by Grimstone because the offence was alledged to be done in the Church of Shoreditch aforesaid and Shoreditch was not named before And upon view of the Indictment it appearing to be so all the Court held that the Indictment was void And for this cause the Defendant was discharged In the Ecclesiastical Laws of Ina King of the West Saxons cap. 6. Qui in Templo pugnaverit 120 Solidis noxiam Sarcito Ibid. Aliud Exemp cap. 6. Si quis in Ecclesia pugnet centum viginti Sol. emendet c. alias 60. emendet pro vita Also among the Ecclesiastical Laws of Hoel Dha King of Wales l. 10. De pugna quae in Coemiterio agitur 14 Librae sunt reddendae Likewise in l. 1. LL. Eccles Edovardi Sen. R. Angliae Guthurni R. Danorum in East-anglia Hoc primo Decreverunt ut Ecclesiae pax intra suos parietes inviolate servetur And in Cap. 2 3. LL. Eccl. Canuti Regis valde rectum est ut Ecclesiae pax intra parietes suos semper inconvulsa permaneat quicunque eam perfregerit de vita omnibus in misericordia Regis sit Et si quis pacem Ecclesiae Dei violabit ut intra parietes ejus homicidium hoc inemendabile sit c. nisi Rex ei vitam concedat 7. Where Prescription is alledg'd for Right to a Seat in a Church or for Priority in that Seat the Common Law hath took cognizance thereof as in the case of Carleton against Hutton where C. claimed the upper place in a Seat in the Church and H. disturb'd him in a violent manner and the Bishop of the Diocess sent an Inhibition to C. until the matter were determined before him And by the Court a Prohibition was awarded because it does not belong as Reported to the Spiritual Court And as well the priority in the Seat as the Seat it self may be claimed by Prescription and an Action upon the Case lies for it at Common Law Ve. Litt. 121 122. The Ordinary hath in him the right of distribution of the Seats in a Church yet so as that prescription shall take place whether it refers to the right of any particular Parishioner or to the power of the Church-wardens The Case was G. brought an Action of Trespass for the breaking of his Seat in the Church and cutting of the Timber in small pieces and carrying them away c. The Defendant pleads in Bar That they were the Church-wardens and that the Plaintiff had erected that Seat without the License of the Ordinary and it was an hindrance to the Parishioners c. and that they as Church-wardens the said Seat c. the which is the same Trespass The Plaintiff demurrs and Judgment for him For admitting that the Church-wardens may remove Seats in the Church at their pleasure yet they cannot cut the Timber of the Pew And thereupon they confessed the Trespass Ve. 6 E. 4. 7. 9 E. 4. 14. 8 E. 4. 6. 18 E. 4. 8. 21 H. 7. 21. 12 H. 7. 27. 11 H. 4. 12. Where there is a Parson Impropriate he hath the best right to the chief Seat in the Chancel as was Resolved in Sir William Hall's Case again Ellis where E. Farmor of a Rectory Impropriate Libels in the Ecclesiastical Court pro Sedile in dextra parte Cancellae and in his Additional Libel he Libels pro loco primo and principally in dextra parte Cancellae The Defendant there surmizes to have a Prohibition Quod est antiqua Parochia antiqua Cancella and that he is seized of an Ancient Messuage in that Parish and that he and all those c. have used to sit in dextra parte Cancellae praedict to hear c. And it was Resolved by the Court That of common Right the Parson Impropriate and per consequens his Farmor ought to have the chief Seat in the Chancel because he ought to repair it But by Prescription another Parishioner may have it But in this case a Consultation was awarded with a quoad c. because the Libel and the Additional that now is all one is pro primo Loco c. and the Surmize is only pro Sedile in dextra parte and not pro loco primo in it 8. The Church in construction of Law is Domus mansionalis Omnipotentis Dei and therefore it is Burglary for a man to break and enter a Church in the night of intent to steal c. And so sacred is the Church and Church-yard reputed in Law That Ecclesiastical persons whilst they are doing any Divine Service in either of them or in any other place dedicated to God may not be Arrested Yea Anciently the Church and Church-yard was a Sanctuary and the foundation of Abjuration for whoever was not capable of this Sanctuary could not have the benefit of Abjuration and therefore he that committed Sacriledge could not Abjure because he could not take the priviledge of Sanctuary This Abjuration was when one having committed Felony fled for safeguard of his life to the Sanctuary of a Church or Church-yard and there before the Coroner of that place within 40 days confessed the Felony and took an Oath for his perpetual Banishment out of the Realm into a Foreign not Infidel Countrey chusing rather Perdere patriam quam vitam But this Abjuration founded upon the priviledge of Sanctuary is wholly abrogated and taken away by an Act made 21 Jac. Reg. whereby it is Enacted That no Sanctuary or priviledge of Sanctuary should be admitted or allowed in any case And here Note That this kind of Abjuration hath no relation to that of Recusants by force of the Stat. of 35 Eliz cap. 1. because such Abjuration hath no dependency upon any Sanctuary But as to the other Abjuration in relation to Felonies Sacriledge excepted no Abjuration or Sanctuary being allowed in cases of Treason or Petit Treason the Law was so favourable for the preservation of Sanctuary in the Church or Church-yard That if a Prisoner for Felony had before his attainder or conviction escaped and taken Sanctuary and being pursued by his Keepers or others were brought back again to the Prison he might upon his Arraignment have pleaded the same and should have been restored again to the Sanctuary of the Church or Church-yard 9. The defacing of Tombs Sepulchres or Monuments erected in any Church Chancel Common Chappel or Church-yard is it seems punishable by the Common Law and for which the Erectors or Builders thereof during their lives and after their decease their Heirs shall have the Action But the Erecting thereof ought not to be to the hinderance of Divine Service And albeit the Freehold of the Church is in the Parson yet if the Lord of a Mannor or any other that hath an House
Law which will not be good if the Institution were not good All which was also the Opinion of the Court in the Case aforesaid for if the Question be whether Parson or no Parson which comprehends Induction it is Triable at the Common Law And although by the Institution the Church if Full against all persons save the King yet he is not compleat Parson till Induction for though he be admitted ad Officium by the Institution yet he is not entitled ad Beneficium till Induction 18. In an Ejectione Firmae brought by the Lessee of Rone Incumbent of the Church of D. it was found by Special Verdict that the King was the true Patron and that Wingfield entered a Coveat in vita Incumbentis he then lying in Extremis scil Caveat Episcopus nè quis admittatur c. nisi Convocatus the said Wingfield the Incumbent dies Naunton a Stranger Presents one Morgan who is Admitted and Instituted afterwards the said Wingfield Presents one Glover who is Instituted and Inducted and afterwards the said Rone procures a Presentation from the King who was Instituted and Inducted And then it came in◠question in the Ecclesiastical Court who had the best Right and there Sentence was given That the First Institution was Irrita Vacua Inanis by reason of the Caveat and then the Church being Full of the Second Incumbent the King was put out of possession and so his Presentation void But it was Adjudged and Resolved by all the Court for Rone For 1 it was Resolved That this Caveat was void because it was in the life of the Incumbent According to the Common Law if a Caveat be entered with the Bishop and he grant Institution afterwards yet it is not void After a Caveat entered Institution is not void by the Common Law Pasch 13 Jac. B. R. Hitching vers Glover Rol. Rep. Cro. par 2. 2. The Church upon the Institution of Morgan was Full against all but the King and so Agreed many times in the Books and then the Presentation of Glover was void by reason of the Super-institution and therefore no obstacle in the way to hinder the Presentation of Rone and therefore Rone had good Right And if the Second Institution be void the Sentence cannot make it good for the Ecclesiastical Court ought to take notice of the Common Law which saith That Ecclesia est plena consulta upon the Institution and the person hath thereby Curam animarum And as Doderidge Justice said He hath by it Officium but Beneficium comes by the Induction And although by the Ecclesiastical Law the Institution may be disannull'd by Sentence yet as Lindwood saith Aliter est in Angl. And Doderidge put a Case out of Dr. Student lib. 2. If a man Devise a Sum of Money to be paid to J. S. when he comes to Full age and he after sue for it in the Spiritual Court they ought to take notice of the Time of Full age as it is used by the Common Law viz. 21. and not of the time of Full age as it is in the Civil Law viz. 25. So in this case for when these Two Laws meet together the Common Law ought to be preferred And when the Parson hath Institution the Archdeacon ought to give him Induction Vid. Dyer 293. Bedingfield's Case cited by Haughton to accord with this Case 19. By the Court That if an Archdeacon make a general Mandate for the Induction of a Parson viz. Vnivers personis Vicariis Clericis Literatis infra Archidiaconat meum ubicunque Constitut That if a Minister or a Preacher who is not resident within the Archdeaconry makes the Induction yet it is good And the Opinion of four Doctors of the Civil Law was shewn in the Court accordingly upon a Special Verdict 21. In the Case of Strange against Foote the sole Point upon the Special Verdict was If one Prideoux being Admitted and Instituted to a Prebendary with the Cure 4 Eliz. be being but Nine years of age notwithstanding the Statute it is meerly void Note 4 H. 6. 3. That if a Feme who is an Infant under 14 years hath issue it is a Bastard 21. It is said at the Common Law that after Induction the Admission and Institution ought not to be drawn into question in the Ecclesiastical Court for they say That after Induction the Ecclesiastical Law may not call into question the Institution That by Institution the Church is full against Common persons but not against the King and that by Induction the King may be put out of possession And in the Case between Rowrth and the Bishop of Chester it was Resolved That after an Induction an Institution is not to be examined in the Ecclesiastical Court but by a Quare Impedit only But yet the Justices if they see cause may write to the Bishop to Certifie concerning the Institution 22. Two Patrons pretended Title to Present the one Presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after he there obtained Institution and Induction by the Archbishop Afterwards the Inferior Bishop Instituted and Inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction as was there said for that would determine the Incumbency which is triable at Common Law 23. In a Prohibition prayed to the Ecclesiastical Court the Case appeared to be this viz. Holt was Presented Instituted and Inducted to the Parish-Church of Storinton afterwards Dr. Wickham draws him into the Ecclesiastical Court questioning of him for some matters as touching the validity of his Induction and upon this a Prohibition was by him prayed Williams Justice A Prohibition here in this Case ought to be granted this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in question with the determination of which they ought not to intermeddle also matter of Induction and the validity thereof is determinable at the Common Law and not in the Ecclesiastical Court and therefore a Prohibition ought to be granted and the whole Court agreed with him herein and therefore by the Rule of the Court a Prohibition in this Case was granted CHAP. XXV Of Avoidance and Next Avoidance as also of Cession 1. What Avoidance is how Twofold 2. The difference in Law between Avoidance and next Avoidance 3. How many waies Avoidanee may happen what Next Avoidance is The word Avoidance falls under a double Acceptation in Law 4. The Next Avoidance may not be granted by a Letter it cannot be granted but by Deed. 5. Grant of a Next Avoidance by the Son Living the Father Tenant in Tail is void 6. How Avoidance may be according to the Canon Law which
the King Confirms and afterwards he is Inducted to the Church of D. In this Case it was Adjudged That the Dispensation came too late because it came after the Institution for by the Institution the Church is full against all persons except the King and as to the Spititualties he is full Parson by the Institution 2. Resolved That admit the Church was not full by the Institution until Induction yet the Dispensation came too late for that the words of the Statute of 21 H. 8 of Pluralities are may purchase Licence to receive and keep two Benefices with Cure of Souls and the words of Dispensation in this case were recipere retinere and because by the Institution the Church was full he could not purchase Licence to receive that which he had before and he cannot retain that which he cannot receive 26. In the case of a Prohibition it was Resolved That by the Common Law before the Statute of 21 H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Archbishop had not Authority by the Statute of 25 H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute But yet the Statute as to those Dispensations which the Archbishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal CHAP. XXVII Of Deprivation 1. What Deprivation is and in what Court to be pronounced 2. The Causes in Law of Deprivation 3. In what Cases Deprivation ipso facto without any Declaratory Sentence thereof may be 4. A Cardinal 's Case of Deprivation by reason of Miscreancy 5. The Papal Deprivation by reason of Marriage 6. What the Law is in point of Notice to the Patron in case of Deprivation by reason of meer Laity or Nonage 7. The difference of operation in Law between Malum prohibitum and Malum in se and in what Cases of Deprivation Notice ought to be given to the Patron 8. Deprivation by reason of Degradation which Degradation at the Canon Law may be two ways 9. Cawdry's Case of Deprivation for Scandalous words against the Book of Common Prayer sentenced by the High Commissioners 10. Deprivation for Non-conformity to the Ecclesiastical Canons by the High Commissioners agreed to be good 11. Deprivation for not Reading the Articles of Religion according to the Statute of 13 Eliz. 12. Deprivation by the High Commissioners for Drunkenness 13. The Church is not void by the Incumbents being Deprivable without Deprivation 14. For an Incumbent to declare his Assent to the Articles of Religion so far as they agree with the Word of God is not that unfeigned Assent which the Statute requires 15. A Church becomes void presently upon not Reading the Articles and there needs not any Deprivation in that Case 16. A Case wherein a Sentence declaratorie for Restitution makes a Nullity in the Deprivation 17. An Appeal from a Sentence of Deprivation prevents the Church's being void pro tempore 18. Vpon Deprivation for meer Laity or Incapacity the Lay-Patron must have Notice ere the Lapse incurrs against him 19. An Incumbent Excommunicated and so obstinately persisting 40 daies is Deprivable 1. DEprivation is a discharge of the Incumbent of his Dignity or Ministery upon sufficient cause against him conceived and proved for by this he loseth the Name of his First Dignity and that either by a particular Sentence in the Ecclesiastical Court or by a general Sentence by some positive or statute-Statute-Law of this Realm So that Deprivation is an Ecclesiastical Sentence Declaratory pronounced upon due proof in the Spiritual Court whereby an Incumbent being legally discharged from Officiating in his Benefice with Cure the Church pro tempore becomes void So that it is in effect the Judicial incapacitating an Ecclesiastical person of holding or enjoying his Parsonage Vicarage or other Spiritual promotion or dignity by an Act of the Ecclesiastical Law only in the Spiritual Court grounded upon sufficient proof there of some Act or Defect of the Ecclesiastical person Deprived This is one of the means whereby there comes an Avoidance of the Church if such Sentence be not upon an Appeal repealed The causes of this Deprivation by the Canon Law are many whereof some only are practicable with us in the Ecclesiastical Laws of this Realm and they only such as are consonant to the Statutes and Common Law of this Kingdom 2. All the Causes of Deprivation may be reduced to these Three Heads 1 Want of Capacity 2 Contempt 3 Crime But more particularly It is evident that the more usual and more practicable Causes of this Deprivation are such as these viz. a meer Laity or want of Holy Orders according to the Church of England Illiterature or inability for discharge of that Sacred Function Irreligion gross Scandal some heinous Crime as Murther Manslaughter Perjury Forgery c. Villany Bastardy Schism Heresie Miscreancy Misbelief Atheism Simony Illegal Plurality Incorrigibleness and obstinate Disobedience to the approved Canons of the Church as also to the Ordinary Non-conformity Refusal to use the Book of Common Prayer or Administer the Sacraments in the order there prescribed the use of other Rites or Ceremonies order form oâ— celebrating the same or of other open and publick Prayers the preaching or publishing any thing in derogation thereof or depraving the same having formerly been convicted for the like offence the not Reading the Articles of Religion within Two months next after Induction according to the Statute of 13 Eliz cap. 12. The not Reading publickly and solemnly the Morning and Evening Prayers appointed for the same day according to the Book of Common Prayer within Two month next after Induction on the Lord's Day the not openly and publickly declaring before the Congregation there Assembled his unfeigned assent and consent after such Reading to the use of all things therein contained or in case of a lawful Impediment then the not doing thereof within one month next after the removal of such Impediment a Conviction before the Ordinary of a wilful maintaining or affirming any Doctrine contrary to the 39 Articles of Religion a persistance therein without revocation of his Error or re-affirmance thereof after such Revocation likewise Incontinency Drunkenness and 40 daies Excommunication To all which might also be added Dilapidation for it seems anciently to have been a Dilapidator was a just cause of Deprivation whether it were by destroying the Timber-trees or committing waste on the Woods of the Church-Lands or by putting down or suffering to go to decay the Houses or Edifices belonging to the same as appears by Lyford's Case as also in the Bishop of Salisbury's Case
Conviction of Perjury in the Spiritual Court according to the Ecclesiastical Laws which although as aforesaid it be a just Cause of Deprivation must yet be signified by the Ordinary to the Patron so also must that Deprivation which is caused by an Incapacity of the party Instituted and Inducted for want of Holy Orders 3. By the Statute of 21 H. 8. if an Incumbent having a Benefice with Cure of Souls value 8 l. per ann take another with Cure immediately after Induction thereunto the former is void and void without any Declaratory Sentence of Deprivation in the Ecclesiastical Court in case the Second Benefice were taken without a Dispensation and of such Avoidance the Patron is to take notice at his peril And as Avoidance may be by Plurality of Benefices incompatible without Dispensation so also by not Subscribing unto and not reading the 39 Articles as aforesaid which by the Statute of 13 Eliz. c. 12. is a Deprivation ipso facto as if the Incumbent were naturally dead insomuch that upon such Avoidance there need not any Sentence Declaratory of his Deprivation but the very pleading and proof of his not Reading the said Articles is a sufficient Barr to his claim of Tithes without any mentioning at all his being deprived in the Ecclesiastical Court Yet Sir Simon Degge in his Parsons Counsellor putting the Question What shall be intended by the words Deprived ipso facto as whether the Church shall thereby immediately become void by the Fact done or not till Conviction or Sentence Declaratory modestly waives his own Opinion and says it is a Quaere made by Dyer what shall be intended by the words ipso facto Excommunicate for striking with a Weapon in the Church-yard albeit by the Canon Law which condemns no man before he be heard requiritur sententia Declatoria 4. Touching Deprivation by reason of Miscreancy the Cardinal who by the Bishop of Durham was Collated to a Benefice with Cure is it seems the standing President in which case it was Agreed that notwithstanding the Cardinal 's being deprived for his Miscreancy in the Court of Rome yet whether he were Miscreant or not should be tried in England by the Bishop of that Diocess where the Church was 5. Among the many Causes of Deprivation forementioned you do not find that of Marriage in the Priest which was anciently practicable as appears by what the Lord Coke reports touching an Incumbent in the time of King Ed. 6. who being Deprived in Queen Maries daies partly because he was a Married person and partly because of his Religion was restored again in the time of Queen Elizabeth In whose Case it was Adjudged That his Deprivation was good until it was voided by a Sentence of Repeal whereby he became Incumbent again by virtue of his First Presentation without any new Presentation Institution or Induction In those days it was held That the Marriage of a Priest was a sufficient cause to deprive him of his Benefice Mich. 4. Ma. Dy. 133. 6. In the Case where a meer Lay-man is Presented Instituted and Inducted he is notwithstanding his Laity such an Incumbent de facto that he is not Deprivable but by a Sentence in the Ecclesiastical Court but then the Ordinary is in that case to give Notice of such Deprivation to the Patron otherwise in case the Ordinary for that cause refused him when he was Presented by the Patron But where Non-age is the cause of Deprivation as when one under the age of 23 years is Presented Notice is to be given it having been Adjudged That no Lapse shall incurr upon any Deprivation ipso facto without Notice seeing the Statute of 13 Eliz. 12. says nothing of Presentation which remaining in force the Patron ought to have Notice 7. As in the Admission of a Clerk to a Benefice whatever is a Legal impediment will also be a sufficient cause of Deprivation so in reference to both the Law takes care to distinguish between that which is only Malum prohibitum and that which is Malum in se and therefore doth not hold the former of them such as frequenting of Taverns unlawful Gaming or the like to be a sufficient cause of a Clerks Non-admission to a Benefice or of his Deprivation being Admitted Otherwise if you can affect him with that which is Malum in se in which case Notice is to be given the Patron by the Ordinary of the Cause of his Refusal or Deprivation as also it is in case of Deprivation for not Subscribing or not Reading the 39 Articles of Religion according to the foresaid Statute of 13 Eliz. 12. which Notice ought to be certain and particular a general Notice of Incapacity not sufficing in which case an Intimation of such particular Incapacity affixed on the Church-door if the Patron be in partibus longe remotis or may not easily be affected therewith will answer the Law Vid. 18 Eliz. Dyer 346. 22 Eliz. Dyer 369. 16 Eliz. Dyer 327. Co. par 6. 29. Green 's Case 8. It is evident from the Premisses That a Deprivation from an Ecclesiastical Benefice will follow upon a Disgrading or Degradation from the Ecclesiastical Function or Calling for this Degradation is the Incapacitating of a Clerk for discharge of that holy Function for it is the punishment of such a Clerk as being delivered to his Ordinary cannot purge himself of the Offence whereof he was convicted by the Jury And it is a Privation of him from those holy Orders of Clerkship which formerly he had as Priesthood Deaconship c. And by the Canon Law this may be done Two waies either Summarily as by Word only or Solemnly as by devesting the party degraded of those Ornaments and Rites which were the Ensigns of his Order or Degree But in matters Criminal Princes anciently have had such a tender respect for the Clergy and for the credit of the whole profession thereof That if any man among them committed any thing worthy of death or open shame he was not first executed or exposed to Publick disgrace until he had been degraded by the Bishop and his Clergy and so was executed and put to shame not as a Clerk but as a Lay-Malefactor which regard towards Ecclesiasticks in respect of the dignity of the Ministry is observed by a Learned Author to be much more Ancient than any Papistical Immunity and is such a Priviledge as the Church in respect of such as once waited on the Altar hath in all Ages been honoured with 9. Robert Cawdry Clerk Rector of the Church of L. was deprived of his Rectory by the Bishop of London and his Collegues by virtue of the high Commission to them and others directed because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common Prayer but the Form of the Sentence was That the said Bishop by and with the assent and
account 10 Months and 40 Weeks or all one but by accident an Infant may be born after the 40 Weeks or before Si partus nascatur post mortem Patru qui dicitur Posthumus per tantum tempus quod non sit verisimile quod possit esse defuncti filius hoc probato talis dici poterit Bastardus 13. It is agreed on all hands that Bawardy is an Ecclesiastica Cause and of Ecclesiastical Cognizance and therefore if Bastardy be pleaded in disability of a plaintiff the saâ—◠〈◊〉 be tried by the Certificate of the Bishop whether it be in Real Action relating to Inheritance or Personal relating to 〈◊〉 otherwise where Action on the Case will lie But if it be pleaded that the Plaintiff was born at such a place before the Marriage solemnized and so he is a Bastard This the Common Law cals a Special Bastardy and shall be tried by Jury at the Common Law where the Birth is alledged So in the Duke of Suffolk's Case of Partition where Special Bastardy was pleaded and Issue thereupon taken the Trial was awarded to be by a Jury of London And where in an Action upon the Case brought for calling one Bastard the Defendant justified that he was a Bastard it was awarded that it should be tried by the Countrey and not by the Ordinary Which seems somthing Paradoxical that if Bastardy be pleaded in Disability of a Plaintiff then it shall be tried by the Bishops Certificate but if it be pleaded that the Plaintiff was born in such a place before the Marriage then by a Jury The former whereof is said to be a general Bastardy the other a special Bastardy whereas in truth they both seem to differ only in this that the former seems to be a general relating to the Plaintiffs condition in respect of his Disability the other seems to be a special relating to the circumstances of Place and Time of his Nativity but both referring to his Bastardy 14. If a man that is ordered by two Justices of the Peace to keep a Bastard-Child he being according to the said Order the reputed Father shall appeal from the said Order to the next Quarter Sessions according to the Stat. of 18. Eliz. and being there discharged and the said Order repealed shall yet afterwards at another Quarter-Sessions of the Peace upon re-examination of the matter be ordered according to the first Order in that case it hath been held by the Court that the second Sessions had no power to alter the Discharge made by the former Sessions v And in another Case it hath been resolved that before the Statute of 3. Car. c. 4. the Justices at the Sessions had no Authority to intermeddle in the Case of Bastardy till the two next Justices according to the Stat. of 18. Eliz. had made an order therein As also that by the Stat. 3. Car. the Justices of their several Limits are to make an Order in Case of Bastardy 15. C. commenced an Action in the Spiritual Court against W. for saying that he had a Bastard W. the Defendant alledged in the said Court that the Plaintiff was adjudged the reputed Father of a Bastard by two Justices of the Peace according to the Statute whereupon he spake the words The Spiritual Court accepted of his Confession but would not allow of his Justification whereupon he prayed a prohibition and it was granted It is not denied but that if the Spiritual Court try a thing that is of Temporal Cognizance a Prohibition may lie although all the Cause were originally Spiritual as was resolved in Kenns Case in which Case it was likewise resolved that where the Cause is Spiritual there the Spiritual Court hath Jurisdiction and in the Case between Banting and Lepingwell it was resolved that the Judges of the Common Law ought that is the word in the Report to give Faith Credit to the Proceedings of the Spiritual Court albeit it be against the Reason of their Law 16. If a man having a wife take another wife and hath Issue by her living the former wife such Issue is a Bastard for the second Marriage is void If a man marry one within the Degrees prohibited the Issue between them is not by the Common Law a Bastard until there be a Divorce for by that Law the Marriage is not till then void So it is although the Brother Marry the Sister If a Man hath Issue by A. and after Marries her yet the Issue is a Bastard at the Common Law An Ideot may consent to Marriage by the Common Law though he were an Ideot from his birth and his Issue by that Law is Legitimate If the Husband be castrated so that it is apparent that he cannot by any possibility beget any Issue and his Wife have Issue divers years after it shall be a Bastard although it be begotten under Marriage for that it is apparent that it could not be Legitimate 17. By the Law of the Land a Man cannot be a Bastard who is born after the Espousals unless there be some special matter in the case If a Woman be big with Child by A. and after A. Marry her and the Issue is born within the Espousals in this Case by the Common Law the Issue is a Mulier and not a Bastard So if a Woman be big with Child by one Man and after-wards another Marries her and after the Issue is born such Issue is a Mulier for that he is born under Espousals and cannot be held the Issue of him by whom she was with Child because that cannot be certainly known and so it is although the Issue were born within three days after Marriage 18. If a Woman Covert hath Issue in Avoutrie yet if the Husband be able to get a Child and be infra quatuor maria the Issue is no Bastard If a Woman Elope and live in Avoutrie with another Man during which Issue is born in Avoutrie yet it is a Mulier by the Common Law But then the Husband must be infra quatuor maria so as that by intendment he might come to his Wife otherwise the Issue is a Bastard But if a Woman hath Issue her Husband being beyond sea for 7 years together before the Issue was born such Issue is a Bastard at the Common Law If a Feme Covert hath Issue her Husband being beyond Sea for 6 years before the Issue is born it is a Bastard at the Common Law If a Woman hath Issue her Husband being within 14 years of age the Issue is a Bastard at the common Law quaere 19. If A. hath Issue by B. and after they intermarry yet the Issue is a Bastard by the Common Law but it is a Mulier by the Civil Law If the Parents be Divorced causa Consanguinitatis they being ignorant thereof at their Marriage the Issues they
had before are Bastards at the Common Law and Muliers by the Civil Law If a Man hath Issue by a Woman and after marry the same Woman the Issue by the Common Law is Bastard and Mulier by the Ecclesiastical Law Likewise if a man espouse a Woman bigg with Child by another Man and within three dayes after she is delivered of Child by the Common Law this is a Mulier and by the Ecclesiastical Law a Bastard If a Woman Elope and hath Issue in Adultery such Issue is a Mulier at the Common Law and a Bastard by the Ecclesiastical Law yet if the Woman continue in Adultery and hath Issue such Issue are Bastards even by the Common Law But by the Law of the Land a man may not be reputed a Bastard who is born after Espousals unless there be some special matter in the Case as aforesaid But if a man who hath a wife doth during her life take another wife and hath Issue by her such Issue are Bastards by both the Laws for the second Marriage is void 20. A Divorce causa Praecontractus doth Bastardize the Issue so also doth a Divorce causa Consaguinitatis likewise if the Divorce be Causa Affinitatis it doth Bastardize the Issue and the Law is the same in case the Divorce be causa Frigiditatis A Man hath Issue a Bastard and after marries the same Woman and hath Issue by her divers Sons and then deviseth all his Goods to his Children Q. whether the Bastard shall take by the devise But if the Mother of the Bastard make such a devise it is clear the Bastard shall take because he is known to be Child of the Mother 21. B. contracted himself to A. afterwards A. was Married to F. and cohabited with him whereupon B. sued A. in the Court of Audience and proved the contract and Sentence was there pronounced that she should Marry the said B. and cohabit with him which she did and they had Issue C. B. and the Father died It was argued by the Civilians that the Marriage betwixt B. and A. was void and that C. B. was a Bastard But it was resolved by the Justices that C. the Issue of B. was legitimate and no Bastard 22. The Case was wherein a Man was divorced causa Fridigitatis and afterwards took another Wife and had Issue it was argued by the Civilians and also by the Justices whether the Issue were Bastard or not it was adjudged that the Issue by the second Wife was not a Bastard For that by the Divorce the Marriage was dissolved à vinculo Matrimonii and each of them might Marry again But admit that the second Marriage was voidable yet it good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue 23. Upon an information in the Castle-chamber in Ireland against the Bishop of K. and C. B. and others that by Practice and Combination and by undue course of proceedings they endeavoured to prove the said C. B. who was ever before reputed a Bastard to be the legitimate or lawful Son and Heir of G. B. Esq to the disherison and defamation of E. B. who was the sole Daughter and Heir of the said G. B. And upon Oier of this cause the Case appear'd to be this viz. About twenty six years before the exhibiting of this Bill the said G. B. had Issue the said C. B. on the Body of one J. D. who during the life of G. B. was not reputed his Wife but his Concubine and the said C. B. for all the time aforesaid was only accounted the natural Son of G. B. but not for legitimate Afterwards viz. sixteen years after the birth of C. B. his Mother being then living G. B. took to Wife a Lady of good Estate and Reputation with the assent of her Friends by whom he had Issue the said E. B. and died After the death of the said G. B. the said C. B. his reputed Son nor his Mother who was yet living said nothing by the space of nine years but at last they practiced and combined with the said Bishop of K. being of their Kin and with many others to prove the legitimation of the said C. B. by an irregular and undue course to the intent to bastardize and disinherit the said E. B. according to which practice and combination the Bishop without any Suit commenced or moved in any of the Kings Temporal Courts or any Writ directed to him to certifie Bastardy or Legitimation in that Case and which is more without any Libel exhibited in his Ecclesiastical Court touching that matter of his own will and pleasure privately and not convocatis convocandis nine years after the death of the said G. B. took the depositions of many Witnesses to prove that the said G. B. twenty nine years before had lawfully Married and took to Wife the said J. D. Mother of the said C. B. and that the said C. B. was the legitimate and lawful Son and Heir of the said G. B. And these depositions so taken the said Bishop caused to be engross'd and reduced into the form of a solemn Act and having put his Signature and Seal to that Instrument delivered the same to C. B. who published it and under colour of that Instrument or Act declared himself to be the Son and lawful Heir of the said G. B. c. And for this practice and misdemeanour the said Bishop of K. and others were censured and thereupon these points were resolved 1. That although all Matrimonial causes have of a long time been determinable in the Ecclesiastical Courts and are now properly within the jurisdiction and cognizance of the Clergy yet ab initio non fuit sic For causes of Matrimony as well as cause Testamentary were heretofore civil Causes and appertaining to the civil Magistrate as is well known to all Civilians until the Christian Emperors and Kings as an honour to the Prelates of the Clergy did grant and allow unto them the cognizance and jurisdiction of these Cases And therefore the King of England who is and of right ever was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his own Dominions although that he allow the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertain to their cognizance yet by the Rules of the Common Law he hath a superintendency over their proceedings with power of direction how they shall proceed and of restraint and correction if they do not proceed duly in some cases as is evident by the Writs of several natures directed to Bishops by which the King commands them to certifie Bastardy Excommunication Profession Accouplement en Loyal Matrimony De admit Clericis de Cautione admittenda c. as also by the Writs of Prohibition Consultation and Attachment upon a Prohibition 2. It was resolved that
of Alimony was commanded to be put out of their Commission And upon that Richardson said to Hitcham move this again when the Court is full for we may advise of this Et adjournat c. One Broke was committed by the High Commissioners to the Fleet because he refused Alimony to his Wife and that being returned upon an Habeas Corpus he was delivered Broke's Case More 's Rep. 18. The Wife complains against her Husband in the Ecclesisiastical Court Causa saevitiae for that he gave her a Box on the Ear and spit on her Face and whirl'd her about and called her damned Whore Which was not by Libel but by Verbal accusation after reduced to writing The Husband denies it and the Court ordered the Husband to give to his Wife 4 l. every Week pro expensis litis and Alimony Barkley and Henden moved for a prohibition The Suit is originally Causa saevitiae and as a Case wherein they Assess Alimony And now for a ground of a prohibition it was said that the Husband chastised his Wife for a reasonable cause as by the Law of the Land he might which they denied and said that they had Jurisdiction in these matters de saevitia c. And afterwards that the Wife departed and that they were reconciled again And then that reconciliation took away that Saevitiâ— before as reconciliation after Elopement Richardson it was said here that the Suit was without Libel but that is no ground of a prohibition for she proceeded upon that matter reduced in Articles and we cannot grant a Prohibition if they proceed in their Form For we are not Judges of their Form But if they will deny a Copy of the Libel a Prohibition lies by the Statute You say that an Husband may give reasonable chastisement to his Wife and we have nothing to do with it But only that the Husband may be bound to his good behaviour by the Common Law And the Sentence in Causa saevitiae is a mensa thoro and we cannot examine what is Cruelty and what not And certainly the matter alledged is Cruelty for spitting in the Face is punishable in the Star-Chamber But if the Husband had pleaded a Justification and set forth a Provocation to him by his Wife to give her reasonable castigation then there would be some colour of a Prohibition Henden we have made such an Allegation and it is absolutely refused Hutton perhaps he is in Contempt and then they will not admit any Plea as if one be Out-lawed at Common Law he cannot bring an Action But they advised the Plaintiff to tender a Justification and if they refused it then to move for a Prohibition 19. B. was ordered by the High Commission-Court to give Alimony to his Wife and was bound in an obligation of 300 l. to one of the Doctors there to give her Alimony and to use her as his Wife And now he is sued there again and it is alledged against him that he had committed Adultery with divers Women and that he had not given Alimony to his Wife and thereupon B. was put to his Oath who answered that as to the point of Alimony he was not bound to answer for that he was bound in an obligation to perform it and also that he was sued to discover upon his Oath the forfeiture of the Obligation and for that the Defendant would make no other answer he was committed to Prison and being brought hither by Habeas Corpus the Court was prayed that he might be released for the reason aforesaid Coke Gawens Case which was ruled here in Wrays time was the same Case in effect and it was ruled that the Ecclesiastical Court may not examine him upon his Oath in such Case and per Curiam B. was Bailed till the next Term for that that was the last day of the Term. Coke for that there is an obligation taken in this Case I will grant a Prohibition for taking an Obligation for that if it be moved and it was not well done to take the obligation to one of the Doctors but we use to take the obligation in the Kings Name Mich. 5. E. 4. B. R. Rot. 143. The Statute of 2 H. 4 gives authority to Bishops to Fine and Imprison for Heresie And where one Reser had given a Legacy to Bishop Stephens for which he sued the Executor who being for not payment thereof Excommunicated said that he was not Excommunicated before God although he were before Men for his Corn grew very well for which words he was after Imprisoned but he was bailed here per Curiam upon an Habeas corpus for that it was not Heresie because that Court hath Authority to examine such things which are given by the Statute of 10. H. 7. One said that the Tenth part of Tythes was not due Jure Divino for which words he was Imprisoned whereupon the Habeas Corpus was brought and that depended till 14. H. 7. at which time it was adjudged that it was not Heresie and that the Court had Jurisdiction to examine that it being given by Statute And it seems to me that the High Commission Court had not power to Fine or Imprison for Alimony Hill 12. Jac. upon an Habeas Corpus by one Codd the return was that he was Imprisoned by the High Commission by that Warrant viz. We command you to take him and Imprison him for manifest Contempt to the Court for that he being ordered to receive his Wife and to enter into an obligation to use her as his Wife he refuses so to do Coke he shall be Bail'd for that he could not be imprisoned by them for Alimony nor take obligation to perform their order Sentence was given in the Ecclesiastical Court that the Wife should be separated from her Husband propter saevitiam of the Husband and Alimony allowed her there the Husband prayed a Prohibition setting forth he desired a Cohabitation and proffered Caution thereby to use her fitly The Court denied it because the Court of the Ordinary is the proper Court for allowance of Alimony A Libel was before the High Commissioners which supposed divers cruelties used by the Husband against the Wife for which she was enforced to depart from him who would not allow her maintenance and therefore she sued before them for Alimony But because it is a Suit properly suable before the Ordinary wherein if there be wrong the party may have an appeal and although it be one of the Articles within their Commission to determine of yet because it is not any of the clauses within the Stat. of 1 E. 6. for which causes the Commission is ordained the Court awarded a Prohibition CHAP. XXXVII Of Defamation 1. What Defamation is how many ways it may be and where Cognizable 2. Two ways of prosecution at the Civil Law in Causes of Defamation 3. Prohibition for suing in the Ecclesiastical Court upon the words Drunkard and Drunken Fellow 4. Several differences in
was a common Pimp and notorious which he would justifie After Verdict for the Plaintiff Littleton the King's Sollicitor moved in Arrest of Judgment that these words are not Actionable for it is a meer Spiritual Slander as Whore or Heretick and punishable in the Spiritual Court and not at the Common Law and he said that divers times Suits have been in the Spiritual Court for such words and Prohibitions prayed and never granted vid. 27. H. 8. 14. But to say that he keeps a Bawdy house is presentable in the Leet and punishable at the Common Law Ward è Contra because it is spoken of one of an honourable profession viz. a Souldier and trenches on his reputation to be taxed with such a base Offence and he said that such offences have been divers times punished in London by corporal punishment but it was answered that was by Custom and there the calling one Where is Actionable Jones Justice held that the Action lay not and all the Justices agreed that the exposition and averment that Pimp is known to be a Name for a common Bawd is good Croke and Berkley agreed that the words are very slanderous and more than if he had call'd him Adulterer or Whoremonger c. aud may be indicted and punished for it corporally as tending to the breach of the Peace and rule was given that Judgement should be entred c. But was afterwards stayed 17. Suit being in the Ecclesiastical Court for calling a mans Wife Welch Jade and Welch Rogue Sentence being there in the Arches the Defendant appealed to the Court of Audience and in the Appeal mentioned the former words and in the libel was interlined and a Welch Thief and hereupon a Prohibition was prayed and granted unless cause were shewn by such a day to the contrary For it was held clearly that for the word Welch Thief Action lies at the Common Law and they ought not to sue in the Spiritual Court And for the other words it was conceived upon the first Motion they ought not to sue in the Spiritual Court for they be words only of Heat and no Slander But it was afterwards moved and shewn that the said words A Welch Thief were not in the first Libel nor in the Appeal at the time of the Appeal but were interlined by a false Hand without the privity of the Plaintiff in the Ecclesiastical Court and that upon Examination in that Court it was found to be falsly inserted and ordered to be expunged And that the words Welch Jade were shewn in the Libel to be expounded and so known to be a Welch Whore which being a Spiritual Cause and examinable there it was therefore prayed that no Prohibition should be granted and if it were granted that a Consultation should be awarded And of this Opinion was all the Court that the words and a Welch Thief being unduly interlined and by Authority of the Ecclesiastical Court expunged and in that Court Jade is known and so expounded for a Whore our Law gives Credence to them therein and especially being after two Sentences in the Spiritual Court This Court will not meddle therewith Wherefore Consultation was granted if any Prohibition was issued forth quia improvide And Rule given that if a Prohibition was not passed that none should be granted 18. It was moved for a Prohibition by Harris Serjeant to the Court of Audience because that the Plaintiff was sued there for saying to one Thou art a common Whore and a base Quean and Harris said that a Prohibition had been granted in this Court for saying to one that she was a pimperly Quean And it was the Case of Man against Hucksler And Finch said though the words are not Actionable in our Law yet they are punishable in the Spiritual Court For the word Quean in their Law implies as much as Whore But Hobart said that this word Quean is not a word of any certain Sense and is to all intents and purposes an Individuum Vagum and so incertain 19. In an Action upon the Case that whereas he is Parson of D. and a Preacher the Defendant Slandered him in haec verba Parrett is a lewd Adulterer and hath had two Children by the Wife of I. S. I will cause him to be deprived for it By the Court the Action doth not lie For the Slander is to be punished in the Ecclesiastical Court And so awarded Quod Quer. nil cap. per. bill 20. D. had sued T. in the Ecclesiastical Court for this viz. That whereas she was of good fame and kept a Victualling House in good Order that the said T. had published that D. kept an house of Bawdry T. now brought a Prohibition and by the Court well for D. might have an Action for that at the Common Law especially where she kept a Victualling house as her Trade Note 27. H. 8. 14. And by the Justices that the keeping of a Brothel-house is enquirable at the Leet and so a temporal Offence And so was the opinion of the Court Tr. 7. Car. B. R. Mrs. Holland's Case 21. W. sued L in the Ecclesiastical Court for a Defamation and had Sentence L. appeals and depending the Appeal comes a Pardon which relates to the Offence and pardons it then L. deferrs his Appeal and for that W. had costs taxed him And now L. prayed a Prohibition because he deferr'd his Appeal because of the Pardon which had taken away the Offence And by the Court in that Case after the pardon the inferiour Court cannot tax Costs but it was urged that the superiour Courts might tax Costs upon the desertion of the Appeal which is an Offence after the Pardon But it was answered on the other side that it was in vain to prosecute the Appeal when the Offence it self is pardoned The words were Thou art a Pander to Sr. Hen. Vaughan And there was much debate if they were actionable at Common Law yet it was agreed that a Suit may be brought for them in the Spiritual Court as for calling one Whore Bawd or Drunkard But otherwise by Jones if he had said That he was Drunk for then a Prohibition lies And it was ruled in 6. Jac. B. R. in the Case of Cradock against Thomas a Prohibition was granted in a Suit for calling one Whoreson And in Weeks Case a Prohibition in a Suit for calling one Knave 22. E. and M. being reputed Church-wardens but they never took any Oath as the Office requires present a Feme Covert upon a common report for Adultery c. And the Husband and Wife libel against them in the Ecclesiastical Court for that Defamation And when Sentence was ready to be given for them the Church-wardens appeal to the Arches where the presentment was proved but by one Witness they sentenced the Baron and Feme But now Ward Serjeant moved for a Prohibition but it was denied by the Court for they were Plaintiffs first And also it is a Cause which this
being made Ministers and do not reform after a months suspension Also by all such persons as refuse the Sacraments at the hands of Unpreaching Ministers after a months obstinacy being first suspended Also by all such Ministers as without their Ordinaries License under his Hand and Seal appoint or keep any Solemn Fasts either publickly or in private Houses having been formerly suspended for the same fault and finally by all Ministers who hold any private Conventicles to Consult on any thing tending to the impeaching or depraving of the Doctrine of the Church of England or of the Book of Common Prayer or of any part of the Government and Discipline now established in the Church of England which by the Seventy third Canon is Excommunication ipso facto 10. Touching persons thus Excommunicated persisting Forty daies in their obstinacy there are Three several Writs at the Law issuing from the Secular power viz. Excommunicato Capiendo Excommunicato Deliberando Excommunicato Recipiendo The Excommunicato Capiendo is a Writ issuing out of Chancery directed to the Sheriff for the apprehending and imprisoning of him who hath obstinately stood Excommunicated Forty daies for the Contempt to the Ecclesiastical Laws of such not in the interim obtaining their Absolution being by the Ordinary certified or signified into Chancery the said Writ thence issues for the apprehending and imprisoning them without Bail or Mainprize until they Conform Which Writ as by the Statute of 5 Eliz c. 23. is to be awarded out of the high Court of Chancery so it is to issue thence only in Term time and Returnable in the Kings Bench the Term next after the Teste thereof and to contain at least Twenty daies between the Teste and the Return thereof And in case the Offender against whom such Writ shall be awarded shall not therein have a sufficient and lawful Addition according to the form of the Statute of 1 H. 5. Or if in the Significavit it be not contained That the Excommunication doth proceed upon some cause of Contempt or some Original matter of Heresie or refusing to have their Children Baptized or to receive the Holy Communion as it is now used in the Church of England or to come to divine Service now commonly used in the said Church or Error in matters of Religion or Doctrine now received and allowed in the said Church Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry That then all pains and Forfeitures limited against such persons Excommunicate by the said Statute of 5 Eliz. 23. by reason of such Writ of Excom Capiend wanting sufficient Addition or of such Significavit wanting all the Causes aforesaid are void in Law 11. The Excommunicato Deliberando is a Writ to the Under-Sheriff for the releasing and delivery of the Excommunicate person out of Prison upon Certificate from the Ordinary into the Chancery of his Submission Satisfaction or conformity to the Ecclesiastical Jurisdiction And the Excommunicato Recipiendo is a Writ whereby Excommunicated persons who by reason of their Obstinacy having been committed to Prison and thence unduly delivered before they had given sufficient Caution or Security to obey the Authority of the Church are to be sought for and committed again to Prison This Sentence of Excommunication by the 65 th Canon pronounced against any and not absolved within Three months next after is every Sixth month ensuing as well in the Parish Church as in the Cathedral of the Diocess wherein they remain by the Minister openly in time of Divine Service upon some Sunday to be denounced and declared Excommunicate and where by the 68 th Canon Ministers are enjoyned not to Refuse to Bury it is with an exception to such persons Deceased as were denounced Excommunicated Majori Excommunicatione for some grievous and notorious Crime and of whose repentance no man is able to testifie 12. A Sentence was given in the Chancellors Court at Oxford at the Suit of B. against H. and thereupon H. was Excommunicated and taken in London upon the Writ of Excom Capiendo And it came into the Kings Bench where he pleaded That there was no Addition in the Significavit according to the Statute of 5 Eliz. and thereupon prayed to be discharged And the Opinion of the Court was That by the Statute of 5 Eliz. the Penalties mentioned in the said Statute are discharged but not the Imprisonment nor the Excommunication 13. By the Statute of 9 Ed. 2. 12. the Writ de Excom Capiendo may be awarded to take a Clerk Excommunicate for Contumacy after Forty daies And by the Statute of 9 Ed. 2. 7. the Kings Letters may not be sent to an Ordinary to Absolve an Excommunicate but where the Kings Liberty is prejudiced By the Statute of 5 6 Ed. 6. cap. 4. striking or laying of violent hands upon any person in a Church or Church-yard is Excommunication And by the Statute of 2 Ed. 6. 13. it is Excommunication to disobey the Sentence of an Ecclesiastical Judge in Causes of Tithes By the Statute of 3 Jac. 4. the Sheriff may apprehend a Popish Recusant standing Excommunicate and by the Statute of 3 Jac. 5. a Popish Recusant convicted shall stand as a person Excommunicate And by the Statute of 3 Ed. 1. 15. he that is Excommunicated shall be debarred of Mainprize 14. V. against E. in the Ecclesiastical Court where the Suit was for Striking in the Church which by the Second Branch of the Statute of 5 Ed. 6. cap. 4. is Excommunication ipso facto By which he surmized him incidisse in poenam Excommunicationis And being granted if c. And Ashley shewed cause why it should not issue viz. There ought to be a Declaration in the Ecclesiastical Court of the Excommunication before any may prohibit him the Church Richardson said That the Proceedings are not contrary to the Statute but stood with the Statute And it was said by Yelverton It seems there ought to be a Declaration in the Ecclesiastical Court But the difference is where it is Officium Judicis or Ad instantiam paris they will give Costs which ought not to be Hutton and Richardson If the party will not prosecute it none will take notice of it and they proceed to give Costs then a Prohibition may be granted And if he be a Minister he ought to be suspended for an offence against the Statute And it ought to be first declared and so to Excommunication and that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted 15. B. was sued in the Ecclesiastical Court in a cause of Defamation in another Diocess than that wherein he lived and being Cited was for Non-appearance Excommunicated and upon Significavit the Writ de Excommunicato Capiendo was awarded Serjeant Finch Recorder prayed a Supersedeas for two Reasons 1. Upon the Statute of 23 H. 8. because he was Sued out of the
He may have a Writ out of Chancery to Absolve him 14 H. 4. fol. 14. And with this agrees 7 Ed. 4. 14. 2 When he is Excommunicated against the Law of this Realm so that he cannot have a Writ de Cautione admittenda then he ought Parere mandatis Ecclesiae in forma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra Jus formam Juris i. e. Communis Juris But if he shew his Cause to the Bishop and request him to assoil him either because he was Excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have as the Lord Coke sayes an Action sur le Case against the Ordinary and with this agrees Dr. Stu. lib. 2. cap. 32. fo 119. 3 If the party be Excommunicated for none of the Causes mentioned in the Act of 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is Cited before the Dean of the Arches in cause of Defamation for calling the Plaintiff Whore out of the Diocess of London against the Statute of 23 H. 8. and the Plaintiff hath Sentence and the Defendant is Excommunicated and so continues Forty daies and upon Certificate into Chancery a Writ of Excommunicato Capiendo is granted and the Defendant taken and Imprisoned thereby That he shall not have a Prohibition upon the Statute of 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called De Cautione admittenda de parendo Mandatis Ecclesiae when the Defendant is taken by the Kings Writ De Excommunicato Capiendo and to assoil and deliver the Defendant 25. Where the Court of B. R. was moved for the Bailing of one who was taken by force of a Capias de Excommunicato Capiendo upon the Statute of 5 Eliz. cap. 23. and came to the Barr by a Habeas Corpus Williams Justice He that is taken by force of a Capis de Excommunicato Capiendo is not Bailable upon the Statute of 5 Eliz. cap. 23. which Statute doth only dispense with the Forfeiture of the Ten pounds and such a person is not Bailable and as to the other matter the same remains as it was before at the Common Law and the Statute of 5 Eliz. dispenseth only with the penalty of Ten pounds Yelverton Justice of a contrary Opinion and that in this case he is Bailable Flemming Chief Justice This is a Case which doth deserve very good consideration and that therefore he would consider well of it and also of the Statute of 5 Eliz. before he would deliver his Opinion Williams Justice clearly he is not Bailable in this Case Afterwards at another time it was moved again unto the Court to have him Bailed Yelverton Justice That he is Bailable and so was it Resolved in one Keyser's Case where he was taken by a Writ De Excommunicato Capiendo brought hither by a Habeas Corpus and upon Cause shewed he was Bailed by the Court de die in diem but neither the Sheriff nor any Justice of Peace in the Countrey can Bail such a one but this Court here may well Bail as in the Case before de die in diem It was further alledged here in this That in the Ecclesiastical Court they would not there discharge such a one being taken and Imprisoned by force of such a Writ De Excommunicato Capiendo without a great Sum of Money there given and a Bond entered into for the same otherwise no discharge there Yelverton Justice and the whole Court The Bishop ought not to 〈◊〉 such a Bond for the performance of their submission The Rule of the Court here in this was That upon their submission they shall be Absolved without any such Bond entred into Flemming Chief Justice They shall Absolve them and if they perform not according to their promise and undertaking they 〈…〉 again by the Writ De Corpore Excommunicato Capiendo but the Bishop is to take no Bond of them for their Absolution to perform their Submission the taking of such Bond by them being against the Law And as to the Bailment all the Judges except Williams Justice did agree that he was Bailable and so by the Order and Rule of the Court he was Bailed vid. Bulstr Rep. par 1. fo 122. Pasch 9 Jac. in Case of Hall vers King CHAP. XLIII Of the Statutes of Articuli Cleri and Circumspecte agatis 1. Several Statute-Laws relating to Ecclesiastical persons and things enacted under the Title of Articuli Cleri in the Ninth year of King Ed. 2. 2. Some other Statute-Laws touching Ecclesiastical matters made the Fourteenth year of King Ed. 3. 3. The Ratification and Confirmation of the 39 Articles of Religion The Subscription required of the Clergy 4. Certain Cases wherein a Prohibition doth not lie to the Ecclesiastical Courts according to the Statute of Circumspecte agatis made the Thirteenth of King Ed. 1. And in what case a Consultation shall be granted 1. THese are certain Statutes made in the time of King Ed. 1. and Ed. 2. touching Persons and Causes Spiritual and Ecclesiastical By the latter of these it is Enacted 1 That upon demand of Tithes Oblations c. under that Name a Prohibition shall not lie unless the demand be of money upon the Sale thereof 2 That upon debate of Tithes amounting to a Fourth part of the whole and arising from the Right of Patronage as also upon demand of a Pecuniary penance a Prohibition may lie Not so in case of demand of money voluntarily accorded unto by way of Redemption of Corporal penance enjoyned 3 That upon demand of money Compounded for in lieu of Corporal penance enjoyned for the Excommunication for laying violent hands on a Clerk a Prohibition shall not lie 4 That notwithstanding any Prohibition the Ecclesiastical Jurisdiction may take cognizance and correct in Cases of Defamation and the money paid for redeeming the Corporal penance thereon enjoyned may receive notwithstanding a Prohibition be shewed 5 That no Prohibition shall lie where Tithe is demanded of a Mill newly erected 6 That in cases of a Mixt cognizance as in the Case aforesaid of laying violent hands on a Clerk whereby the Kings Peace is broken and such like the Temporal Court may discuss the same matter notwithstanding Judgment given by the Spiritual Court in the case 7 That the Kings Letters may not issue to Ordinaries for the discharge of persons Excommunicate save only in such Cases as wherein the Kings Liberty is prejudiced by such Excommunication 8 That Clerks in the Kings Service if they offend shall be correct by their Ordinaries but Clerks during such time as they are in his Service shall not be oblig'd to Residence at their Benefices 9 That Distresses shall not be taken in the Ancient
I do allow the Printing of this Book entituled An Abridgment of the Ecclesiastical Laws FRA NORTH Imprimatur hic Liber cui Titulus AN ABRIDGMENT OF THE. ECCLESIASTICAL LAWS Guil. Sill R. P. D. HENR Episc Lond à Sacris Dom. Repertorium Canonicum OR An Abridgment OF THE ECCLESIASTICAL LAWS OF THIS REALM Consistent with the TEMPORAL WHEREIN The most Material Points relating to such Persons and Things as come within the Cognizance thereof are succinctly Treated Principio Comperto facile est adjicere Reliquum Cooptare Tho. Cana. in Proaem Decret nu 3. T. 1. By JOHN GODOLPHIN LL. D. LONDON Printed by S. Roycroft for Christopher Wilkinson at the Black Boy against St. Dunstan's Church in Fleetstreet 1678. THE Introduction THE Question which King Henry the Eighth did once put to both the Universities of this Realm viz. An aliquid Authoritatis in hoc Regno Angliae Pontifici Romano de jure competat plusquam alii cuicunque Episcopo Extero being Resolved in the Negative and that Resolution ratified in the Convocation An. 1534. an Act of Parliament passed about two years after for the extinguishing of that Papal Authority in this Realm This succceded so well in consequence of what the Convocation An. 1530. had before acknowledged him viz. The Supream Head on Earth of the Church of England that that Supremacy was likewise after confirmed by Act of Parliament to him his Heirs and Successors This is that Supremacy here tenderly touch'd at in the first Chapter of the ensuing Abridgment and without which all that follows would be but insignificant and disfigured Cyphers When King Henry the Eighth was thus both Parliamentarily and Synodically invested herewith although it was with all the Priviledges and Preheminences incident thereto yet no more accrued to the Crown thereby than was legally inherent in it before yet in regard of the Usurpations that in divers Kings Reigns had successively invaded the Rights of the Crown in that most splendent Jewel thereof another Convocation in An. 1532. to give the King as it were Livery and Seisin of the said Supremacy promised him in verbo Sacerdotii That they would not from thenceforth Assemble in any Convocation or Synod without his Majesty's Writ nor make any Canons or Constitutions without his License and consent nor execute the same until they were Ratified under the Great Seal of England All which was done without the least diminution of any Archiepiscopal or Episcopal Power or Priviledges in the free exercise of that Ecclesiastical Jurisdiction which they anciently enjoyed The whole of this Design being only to eject the Roman Pontifex and annul his Usurpation in a matter of that weighty Consequence to which the Crown was so undoubtedly Entituled And this only in a way consonant to that Allegiance which every Subject without distinction owes to his lawful Sovereign in all matters as well Ecclesiastical as Civil within his Majesty's Realms and Dominions whereby the Clergy as well as Laity being all Subjects alike might be reduced not only to their Primitive Obedience unto but also to their Dependance on their own Sovereign in preference to any Forein Potentate whatever That the Supream Civil Power is also Supream Governour over all Persons and in all Causes Ecclesiastical is a Rule says the Learned Bishop Taylor of such great necessity for the conduct of Conscience as that it is the measure of determining all Questions concerning the Sanction of Obedience to all Ecclesiastical Laws the duty of Bishops and Priests to their Princes the necessity of their paying Tribute and discharging the burthens and relieving the necessities of the Republick It was never known says the same Author in the Primitive Church that ever any Ecclesiastical Law did oblige the Catholick Church unless the Secular Prince did establish it The Nicene Canons became Laws by the Rescript of the Emperour Constantine says Sozomen When the Council of Constantinople was finished the Fathers wrote to the Emperour Theodosius and petitioned Vt Edicto Pietatis tuae confirmetur Synodi sententia The confirmation of the Canon and Decrees of the great Council at Ephesus by the Emperour is to be seen at the end of the Acts of the Synod And Marcian the Emperour wrote to Palladius his Prefect a Letâ—er in which he testifies that he made the Decrees of the Council of Chalcedon to become Laws Ea quae de Christiana fide à Sacerdotibus qui Chalcedone â—convenerunt per nostra Praecepta Statuta sunt c. Thus also the Fathers of the Fifth General Synod petitioned Justinian to confirm and establish their Canons into a Law The same Prince also Published a Novel in which he commands Vim Legum obtinere Ecclesiasticos Canones à quatuor Synodis Nicena Constantinopolitana prima Ephesina prima Chalcedonensi expositos confirmatos Vid. Concil Tolet. All which confirms it for a Truth That even in the Primitive Church the Supremacy in matters Ecclesiastical was in the Supream Secular Prince Touching Archbishops our Malmesbury confesses that in the Ancienter times of the Britains it was unknown where the Archbishoprick was At the Council of Arles An. 314. Silvester the Pope is but plain Bishop as appears by the Nomenclature of those that were at that Council The High Title of Archbishop was for a long time in use in the Eastern Church before it came into the West For whereas our Beda tells us That Augustine was Ordained Archbishop of the English Nation by Etherius Archbishop of Arles aforesaid he therein follows the mode of speaking current in his own times for Gregory the then Pope in his several Letters written to them affords neither of them that Title no not when he bestows the Pall upon Augustine and gives him the precedency and priority in respect of York and all other Bishops of Britain Yet the incomparable B. Vsher affirms that they did not quite deny Archbishops among the Old Britains for he proves they had such but that all Memorials were lost where the Archiepiscopal or Patriarchal Seat resided For although London hath been for many Ages the Chiefest of Britain and was no less than 1300 years since reputed Vetus Oppidum and Augusta yet a Modern Writer of great Learning and Authority would have York as the more Ancient Metropolis of the Diocess of the Britains and that not only because it was a Roman Colony which London was not as Onuphrius contrary to so great and plain Authority of Tacitus doth affirm but also for that the Emperours Palace and Praetorium likewise Tribunal or chief Seat of Judgment was there whence by the Old Historian Spartianus it was called Civitas by way of excellency It must be acknowledg'd that the very Original of things are to us much clouded in obscurity and uncertainty yet he that duly consults Antiquity will find That what Radulphus de Diceto writes touching the Original of Episcopacy and Archiepiscopacy in Britain seems to have
Constance there being a Contest about Precedency between the English and French Embassadours the English have these words viz. Domus Regalis Angliae Sanctam Helenam cum suo filio Constantino Magno Imperatore nato in urbe Regia Eboracensi educere comperta est The Royal House of England it is known for certain brought forth Helena with her Son Constantine the Great Emperour Born in the Royal City Eboracum Likewise the English at Basil opposing the Precedency of Castile say thus viz. Constantium illum Magnum qui Primus Imperator Christianus so are their words Licentiam dedit per universum Orbem Ecclesias constituere immensa ad hoc Conferens bona Peternae natum in Eboracensi Civitate That Constantine who being the first Christian Emperour gave leave to build Churches throughout the World was Born at Peterne in the City of York By this they mean Bederne a Colledge of Vicars there sometime serving the Quire which as also Christchurch called in Ancient Charters Ecclesia Sanctae Trinitatis in Curia Regis is verily thought to have been part of the Imperial Palace in old time which seems the more probable by what Herodian writes viz. That Severus the Emperour and his eldest Son Antoninus sate at York about Private and Common affairs and gave their Judgment in ordinary Causes as in that of Coecilia about recovery of Right of Possession The Rescript or Law of which matter is to this day preserved in the Code whereon the Learned Cuiacius of Great Britain hath made very remarkable Observations This was that Septimius Severus Emperour of Rome and Master of the World who in this Isle breathed his last and who when he saw there was nothing to be expected but Death called for the Vrn wherein he had appointed his Ashes after the Ossilegium should be put and viewing it very exactly Thou shalt hold said he the Man whom the World could not contain No wonder then that this City of so great Renown and Antiquity was adorned with an Archiepiscopal Seat above a Thousand years since as aforesaid yet it never had those high Priviledges or Pterogatives which were and are peculiar to the Archiepiscopal See of Canterbury whereof the Power next under the Crown of convening Councils and Synods is not the least Gervasius in his Chronicle de Tempore H. 2. tells us That RICHARDUS CANTUARIENSIS Archiepiscopus totius ANGLIAE Primas Apostolicae Sedis Legatus Convocato Clero ANGLIAE celebravit Concilium in Ecclesia Beati PETRI ad WESTMONASTERIUM 15. kal. Junii Dominica ante Ascentionem Domini An. 1175. In hoc Concilio ad dextram Primatis sedit Episcopus LONDONIENSIS quia inter Episcopos CANTUARIENSIS Ecclesiae Suffraganeos DECONATVS praeminet dignitate Ad sinistram sedit Episcopus WINTONIENSIS quia CANTORIS officio praecellit The Church when Disdiocesan'd by Death Translation or otherwise or quasi viduata whilst the Bishop is employed about Transmarine Negotiations in the Service of the King or Kingdom the Law takes care to provide it a Guardian quoad Jurisdictionem Spiritualem during such vacancy of the See or remote absence of the Bishop to whom Presentations may be made and by whom Institutions Admissions c. may be given and this is that Ecclesiastical Officer whether he be the Archbishop or his Vicar General or Deans and Chapters in whomsoever the Office resides him we commonly call the Guardian of the Spiritualties The Power and Jurisdiction of this Office in the Church is very Ancient and was in use before the time of King Edward the First it doth cease and determine so soon as a new Bishop is Consecrated to that See that was vacant or otherwise Translated who needs no new Consecration This Ecclesiastical Office is in being immediately upon the vacancy of an Archiepiscopal See as well as when a Bishoprick happens to be vacant Beside the Presentations Admissions Institutions c. aforesaid that this Officer is legally qualified for he may also by force of the Act of Parliament made in the Five and twentieth year of King Henry the Eighth grant Licenses Dispensations Faculties c. which together with such Instruments Rescripts and other Writings as may be granted by virtue of the said Statute may be had made done and granted under the Name and Seal of the Guardian of the Spiritualties And in case he shall refuse to give the same an effectual dispatch where by Law it may and ought to be granted in every such case the Lord Chancellor of England or Lord Keeper of the Great Seal upon Petition and Complaint thereof to him made may issue his Majesties Writ directed to such Guardian of the Spiritualties requiring him by virtue of the said Writ under a certain penalty therein limited by the said Lord Chancellor or Lord Keeper to grant the same in due form of Law otherwise and no just and reasonable cause shewed for such refusal the said penalty may be incurr'd to his Majesty and a Commission under the Great Seal issued to two such Prelates or Spiritual persons as shall be nominated by his Majesty impowring them by virtue of the said Act to grant such Licenses c. as were so refused to be granted by the Guardian c. as aforesaid The first thing in order to the Election of a Bishop in the Vacancy of any Episcopal See is and ever hath been since the time of King John the Royal Congé d'Eslire which being obtain'd the Dean and Chapter proceeds to Election It cannot legally be doubted but that the consent of the Dean is not only requisite but also necessary to the Election of a Bishop as appears by an Ancient Contest above five hundred years since between the Dean and Canons of London touching the Election of Anselme Soon after King Stephen came to the Crown he conven'd a Council at Westminster vocati sunt ad Concilium says an Historian WILLIELMVS DECANVS LVNDONIAE siuml Canonici Cum autem haberetur Tractatus de Concilio Lundoniensis Ecclesiae tunc vacantis nec in aliquem possent unanimiter convenire recesserunt à Decano Canoni corum multi citra conscientiam ejus ANSELMUM Abbatem in Episcopum Eligentes Canonici vero quos Decanus habebat secum in Mensa diebus singulis Appellaverunt nec Regis occurrerunt offensam Canonici quidem alii quia quod fecerant tam Regi quam toto Concilio videbatur iniquum Regis indignationem plurimam meruerunt quorum aliqui bonis suis spoliati sunt The Pope afterwards having on this occasion a solemn Conference with his Cardinals Albericus Hostiensis Episcopus quod sequitur pronunciavit in Publicum Quoniam Electio Canonicorum Lundoniensium citra conscientiam Assensum Decani facta fuit cujus est Officium in Eligendo Pastore suo de jure primam vocem habere Nos eam auctoritate beati Petri devocamus in irritum So that according to this Ancient President the Election
Vrbis Cantuar. Antiq. pag. 362 363. ubi de Decano Christianitatis But the Deans here specially meant and intended are only such as with the Chapters according to the ancient and genuine use thereof are as Senatus Episcopi to assist the Bishop in his Jurisdiction Cathedral Churches being the first Monuments of Christianity in England So Dr. Hacket in Parliament 1640. The Office and Ecclesiastical Dignity of Archdeacons which you next meet with in this Abridgment is of very great Antiquity There was a sharp Contest above Five hundred years since in the time of King H. 2. between the Archdeacons and the Priors of Winchester and Ely touching the Presentation of their Bishops Elect unto the Metropolitan in order to their Consecration wherein by the Interlocutory of the said Metropolitan the Priors had the Victory Hora congrua Consecrationis instante R. Wintoniensis R. Elyensis Archidiaconi cum Officiales Episcoporum dicantur ad suum spectare contendebant Officium Electiones c. praesentare Metropolitano W. Wintoniensis S. Elyensis Priores in contrarium sentiebant quam enim in Ecclesiis Cathedralibus ubi Canonici divinis mancipantur obsequiis Decani sibi vindicant dignitatem hanc si Monachorum Conventus in Episcopali sede praemineat sibi jure possunt vendicare Priores Sed ut omnis in posterum amputetur occasio Litigandi de Interlocutoria Metropolitani sententia c. Wintoniensis Elyensis Electiâ— ad Priorum suorum praesentationem recepti ad Priorum suorum postulationem Episcopi Consecrati sunt Radulph de Diceto Imag. Hist. By the 25th Canon of the Council of Lateran under Pope Alexander it was Ordained That an Archdeacon in his Visitation should not exceed the numqer of Five or Seven Horsemen for his Retinue Chron. Gervas de Temp. H. 2. And as to the Visitation-Articles every Bishop and Archdeacon heretofore framed a Model thereof for themselves but at the Convocation in the year 1640. a Body thereof was composed for the publick use of all such as exercised Ecclesiastical Jurisdiction And by the foresaid Canon of the Council of Lateran it was further Ordained That no Archdeacon in his Visitation should presume to exact from the Clergy more than was justly due Archidiaconi autem sive Decani nullas exactiones in Presbyteros seu Clericos exercere praesumant Notwithstanding what toleration the Law allows as to Archbishops Bishops Archdeacons c. as to the number of their Retinue in their Visitations yet therein respect is ever to be had to the condition of the Churches Persons and Places Visited as may plainly appear by the express words of the Canon aforesaid viz. Sane quod de numero evectionis secundum tolerantiam dictum est in illis Locis poterit observari in quibus ampliores sunt redditus Ecclesiasticae facultates In pauperibus autem Locis tantam volumus teneri mensuram ut ex accâ—ssu majorum minores non debeant gravari ne sub tali indulgentia illi qui paucioribus Equis uti solebant hactenus plurium sibi credant potestatem indultam So that no Archdeacon or other having Right of Visitation ought by what the Law allows them in that case to exercise their power in this matter beyond what the condition of the place Visited will reasonably admit In all Visitations of Parochial Churches made by Bishops and Archdeacons the Law hath provided that the Charge thereof should be answered by the Procurations then due and payable by the Inferiour Clergy wherein Custome as to the Quantum shall prevail but the undue Demands and supernumerary Attendants of Visitors have Anciently as well as in Later times given the occasion of frequent Contests and Complaints For prevention whereof it was Ordained by the 25th Canon of the Council of Lateran under Pope Alexander circa An. 1179. in haec verba viz. Cum quidam Fratrum Coepiscoporum nostrorum ita graves in Procurationibus subditis suis existunt ut pro hujusmodi causa interdum ipsa Ecclesiastica Ornamenta subditi compellantur exponere longi temporis victum brevis hora consumat Quocirca statuimus Quod Archiepiscopi Parochias Visitantes pro diversitate Provinciarum facultatibus Ecclesiarum 40 vel 50 evectionis Numerum Episcopi 20 vel 30 Cardinales vero 20 vel 25 nequaquam excedunt Archidiaconi vero Quinque aut Septem Decani Constituti sub Episcopis Duobus Equis contenti existant Prohibemus etiam ne subditos suos talliis exactionibus Episcopi gravare praesumant Archidiaconi autem sive Decani nullas exactiones vel tallias in Presbyteros seu Clericos exercere praesumant vid. Chron. Gervas de Temp. H. 2. col 1455. can 25. whereby it is evident that these Procurations ought to be so moderated by the Bishops as that they may not become a burthen or grievance to the Clergy The lawfulness of these Episcopal and Archidiaconal Rights of Procurations are not to be called into question at this day for in all the Establishments and Ordinations of Vicarages upon the Ancient Appropriations of Churches you shall find these Procurations excepted and reserved in statu Quo As appears by these of Feversham and Middleton when by William the Conqueror they were Appropriated to the Abbey of St. Austins as also by these of Wivelsberg Stone and Brocland in Kent when they were Appropriated to the same Abbey by the Charter of King Ed. 3. and in that of the Parish of Stone aforesaid Pentecostals by name are reserved in these words Nihilominus solvet Procurationem debitam Archidiacono Cantuariensi Visitanti expensas pro Pentecostalibus faciendis vid. Chron. W. Thorne Appropria Eccles col 2089. Hist Angl. What Procurations the Archbishop of Messena who arrived in England as the Popes Legate in the year 1261. exacted and extorted from the Bishops and Abbots with great violence in the Reign of King H. 3. you may find in Matthew Paris But by the Fourth Canon of the Council at Rome under Pope Alex. 3. An. 1180. it was Ordained That Bishops and Archbishops in their Visitations should not overcharge the Church of their Bounds with unnecessary charges and expences specially the Churches that are poor No sooner had Princes in Ancient times assign'd and limited certain Matters and Causes controversal to the cognizance of Bishops and to that end dignified the Episcopal Order with an Ecclesiastical Jurisdiction but the multiplicity and emergency of such affairs requir'd for the dispatch and management thereof the assistance of such subordinate Ordinaries as being experienc'd in the Laws adapted to the nature of such Causes might prove a sufficient Expedient to prevent the avocation of Bishops by reason of such Litigious interpositions from the discharge of the more weighty Concerns of that Sacred Function Hence it is supposed that the Ecclesiastical Office of Diocesan Chancellors Commissaries and Officials originally came into use and practice the place of their Session anciently styled the Bishops
and thereon the Ordinaries Approbation the way is open for Admission if no other Legal impediment appears to the Ordinary yet the Canon requires that notwithstanding the Bishops Approbation upon the party's Examination he may not Ordain him unless he hath in esse or posse a promise or a prospect of some Ecclesiastical Living whereof to assume the Cure and whereon to receive subsistance unless the Ordinary will maintain him until he be so provided in case he hath not of his own wherewith to subsist without such provision for our Law and Practice both requires that they should be Incumbents and not Mendicants By the Fifth Canon or Constitution made by that great Convention of no less than One hundred and Eighty Bishops at Rome under Pope Alexander the Third it was Ordained That if any Bishop should Admit any man to be a Presbyter or a Deacon without the Title of a Place that may afford unto him things necessary for the maintenance of his life Let the Bishop himself sustain him until he provide a Living for him except he be able of his own patrimony to sustain himself In the Council of Carthage it was Ordained Quod nullus ordinetur Clericus nisi probatus aut examine Episcoporum aut populari testimonio cap. Nullus 24. dist And by the Council of Pope Martinus it was Decreed That all such as were Ordained Presbyters or Deacons without Examination were to be expell'd the Clergy c. si 24. Dist The Subject-matter whereon they are to be Examined differs with us from that used in the Church of Rome chiefly in these Three particulars viz. Quoad Genus quoad Patriam quoad Fidem vid. c. quando 24. Dist There are several ancient Canons which give this Jus Examinationis to Archdeacons c. adhaec c. ut nostrum De Offic. Arch. c. si quis 94. Dist yet Rebuffus tells us that at this day in France they have lost that part of their Office by a kind of desuetude or disuse thereof it now wholly belonging to the Episcopal Order in that Kingdom as in this and most other Churches of Christendom c. Si servus 54. Dist c. accepimus de aetate qualitate Vacatio Beneficii or the Avoidance of an Ecclesiastical Benefice which you meet with also in the ensuing Abridgment as it is opposed to Plenarty is the want of a lawful Incumbent during which vacancy the Law looks on the Church quasi viduata without her Spiritual husband and our Common Law on the Possessions thereof as in abeiance An Avoidance in the causes thereof as practicable with us differs much from that at the Canon Law where there are thrice as many as are in use with us Rebuffus enumerates above Thirty Causes of such Avoidances but of such relation to the Pontifical Constitutions that not above a Third part of them takes place in this Realm It is Quaestio Juris whether a Benefice be void before Sentence Judicially pronounced albeit in the Law it be said Quod ipso facto sit privatus Admitting the Crime to be committed for which the Law says he shall be deprived ipso facto yet the Question is held in the Negative unless it plainly appears that the mind of the Legislators were otherwise as if those words were added viz. Beneficium eo ipso vacare ita ut alteri Libere possit conferri c. Dudum 2. de Elect. As when one takes a second Benefice Incompatible Aquin. 2. 2. q. 62. art 3. Cajetan ib. Sotus lib. 1. de Just q. 6. art 7. Covar de Matrim p. 2. cap. 6. § 8. nu 9 13. and generally the Modern DD. But the Question is put a little further As whether the Benefice be void when it is said in the Law Sit privatus ipso facto absque alia declaratione Covarruvios Sotus and Henriquez de Excom c. 56. and many other of the later Writers are of Opinion that it is not void but that a declaratory Sentence of the Crime is requisite and that Clause absque alia declaratione is to be understood of a declaration of the penalty incurred not of the Crime committed which exposition of the words though it may seem somewhat strained is notwithstanding by the frequent use and practice thereof among the Canonists sufficiently confirmed And those Laws which say that the Benefice shall be void ipso jurc as in Extrav Ambitiosae De reb Eccl. do not seem to be taken in that strict and rigorous sense Vt sponte teneatur se Reus spoliare Less de Just Jur. lib. 2. cap. 29. de Judice Dub. 8. nu 68. If it shall hence be demanded of what force energy or operation then are such Laws whereby a man is ipso jure deprived of his Benefice by reason either of some Crime committed or another Benefice Incompatible accepted the Answer which the Canonists make to it is That by the words ipso jure privatus Beneficio the Offender doth immediately lose the very Title he had to the Benefice insomuch as that he is no longer Dominus Beneficii yet doth retain the possession thereof of which he cannot be Deprived nisi causa cognita without a fair Trial at Law Gloss in c. Licet Episcopus 28. de Praebendis in 6. DD. ibi Note This is not said by way of interpretation of these words ipso jure in any Statute Law of this Realm but by way of Exposition thereof among the Canonists Although the Clergy have ever been had in the highest repute both with Prince and People where the Gospel hath been received and have been honoured with divers Priviledges and Immunities above the Laity yet the Law hath ever held it as prejudicial to the Church That Plures honores Ecclesiastici uni personae sint tribuendi At a Council conven'd at Westminster in the Five and twentieth year of the Reign of H. 1. being above Five hundred years since Honorius 2. then Pope in this Synod it was Ordained in these words Praecipimus ne uni personae in Ecclesia Archidiaconatus aut diversi tribuantur honores To this purpose is the Third Canon of the Lateran Council under Pope Alex under Quia nonnulli diversas Ecclesiasticas Dignitates plures Ecclesias Parochiales contra Sacrorum Canonum instituta nituntur adquirere ita ut cum unum Officium vix implere sufficiant stipendia sibi vendicent plurimorum ne id de caetero fiat districtius inhibemus Et quia tantum quorundam processit ambitio ut non duas vel tres sed Sex vel plures Ecclesias perhibeantur habere nec duabus possunt debitam provisionem impendere per Fratres Coepiscopos nostros hoc emendari praecipimus Likewise Gregory the Tenth who succeeded Clement at a Council at Lyons Pluralitatem Beneficiorum Curatorum damnavit Hen. de Knyghton de Event Angl. lib. 2. In like manner it appears by the Fourteenth Canon of the Council at Rome under Pope Alexander 3. An. 1180. That
Plurality of Benefices is there forbidden as a vice smelling of Avarice and Ambition dangerous and prejudicial to the People whose Souls are neglected by such Pastours One of the chiefest Reasons why the Law forbids Pluralities is because it enjoyns Residence both which are inconsistent in the same Incumbent Aquinas says That the having of Two Benefices is not intrinsecally evil or Malum in se nor that it is altogether indifferent but carries in it a species of Evil yet so as that upon due Circumstances it may be capable of a qualified lawfulness Aquin. quod-lib 9. art 15. To the many Inconveniencies which the Law doth specifically observe to follow upon Pluralities this may not impertinently be added That thereby the pious Intention of Founders is frustrated The Council of Trent hath these words of it Haec Pluralitas est perversio totius Ordinis Ecclesiastici Concil Trid. Sess 24. cap. 17. Pope Alexander the Third said That Pluralitas Beneficiorum certum continet animarum periculum c. Quia in tantum 7. de Praebend The Canonists speaking of this Subject in reference to Dispensations to salve the matter if possible and bring both ends together have found out a very prety distinction of Beneficia Incompatabilia primi generis and Incompatabilia secundi generis But we are not concern'd in that Distinction In that Council of Trent it was said by the Bishop of Bitonto That Plurality of Benefices unknown to the First Ages was not brought in by the Court of Rome but by Bishops and Princes before the Popes took upon them to regulate the matter of Benefices throughout all Christendom Yet the Author of the History of the said Council of Trent lib. 2. says That Clement the Seventh Commended to this Nephew Hippolitus Cardinal de Medicis in the year 1534. all the Benefices of the world Secular and Regular Dignities and Parsonages Simple and with Cure being vacant for Six months to begin from the first day of his possession with power to convert all the Profits thereof to his own use The waies whereby an Ecclesiastical Benefice may be acquired are not many but the Causes for which an Ecclesiastical person may thereof be Deprived are very many generally they may all be reduced to these Three Heads 1 By the Disposition of the Law 2 By the Sentence of the Judge or 3 By a free and voluntary Resignation which though it be not properly a Deprivation yet it is an amission of the Benefiee Deprivation by the disposition of the Law is either by reason of some Crime whereunto the penalty of Deprivation ipso facto is by the Law annexed or by reason of accepting another Benefice Incompatible The Pontifical Law adds Two more which do not concern us viz. Ingress into Religion and Matrimony The Crimes that incurr Deprivation are many but they must be proved for the Beneficed party is not bound sponte sua to quit his Benefice ante Sententiam Judicis Less de Benefic cap. 29. Dub. 8. And when a man is not Jure Privatus but only Privandus in that case his Benefice cannot be bestowed on another unless a Privative Sentence be first pronounced by the Judge If a person Beneficed be long absent and Non-resident from his Benefice the Benefice is not by reason of such long Absence void ipso Jure but the Law in that case also requires a Judicial Sentence of Deprivation and that only post trinae Citationis in eorum Ecclesiis publice Edictum Gloss in c. Quoniam ut lite non contestata c. One of the chiefest Reasons in Law why Pluralities are prohibited is for the prevention of Non-residence as appears by the Third Canon of the Lateran Council which Canon after it prohibits the having of divers Ecclesiastical Dignities or more Parochial Churches than one it makes provision against Non-Residence in these words viz. Cum igitur vel Ecclesia vel Ecclesiasticum Ministerium committi debuerit talis ad hoc persona quaeratur quae Residere in loco curam ejus per seipsum valeat exercere Quod si aliter Actum fuerit qui receperit quod contra Sacros Canones acceperit amittat qui dederit largiendi potestate privetur Likewise by the Thirteenth Canon of that great Council of One hundred and eighty Bishops Assembled at Rome by Pope Alexander the Third in the year of our Lord 1180. it was Ordained That such persons should be preferr'd to Ecclesiastical Dignities as shall be actually resident with their people and undertake the Cure of their Souls by doing the work of their Ministry in their own persons otherwise to deprive them of the Office and Benefice conferred on them and they who do conferr them without these Conditions let them lose the right of conferring Offices and Benefices By this appears how strict and exact the Law is against Non-Residence in the Romish Church One of the most famous Abbots and Monasteries in Britain anciently seems to be that of Bangor in Flintshire whereof Ranulphus Cestrensis says that Tradunt nonnulli Pelagium fuisse Abbatem apud Famosum illud Monasterium de Bangor This Monastery which Ranulphus speaks of is by our Beda called Bamornabyrig lingua Anglorum in quo says he tantus fertur fuisse numerus Monachorum ut cum in Septem portiones esset cum Praepositis sibi Rectoribus Monasterium divisum nulla harum portio minus quam Trecentos homines haberet qui omnes de labore manuum suarum vivere solebant But concerning Abbots having nothing to do with them nor they with us it being also well known what once they were in this Kingdom and what now they are where the Pope doth exercise his Jurisdiction it may here suffice only to observe That the word Abbates hath anciently had a wide and far different signification from what we now commonly understand thereby for in and among the Laws of King Aethelstan we find the words quatuor Abbates to be taken according to the Glossographist thereon for quatuor hebdomadas That Law directs how and in what manner the Hundred Court shall be held the words are Hoc est judicium qualiter HUNDREDUM teneri debeat In primis ut conveniant semper ad quatuor ABBATES faciat omnis homo Rectum alii which the Glossary calls Locum plane mendosum and by the quatuor Abbates will have quatuor hebdomadas to be understood which is the more probable by what appears in one of the Laws of King Edward Father of the said Aethelstan who began his Reign in An. 901. being the Son of King Alured the words of which Law are Volo ut omnis praepositus habeat GEMOTUM semper ad QUATUOR EBDOMODAS efficiat ut omnis homo rectum habeat omne placitum capiat terminum quando perveniat ad finem By the word Gemotum in that place is meant Conventus Publicus Concilium but chiefly Placitum as appears by the 107th Law
West-Saxons in the borders of Worcester and Herefordshire under an Oak thereby tacitly reproving the Idolatry of the Pagan Britains who acted their Superstitions under an Oak as the Learned Sr. H. Spelman observes In the Tenth Century King Edward the Elder Son of King Alfred called a Synod at Intingford where he confirmed the same Ecclesiastical Constitutions which King Alured had made before Many Councils were Conven'd during the Reign of King Athelstan as at Exiter Feversham Thunderfield London and at Great Lea which last is of most account in regard of the Laws therein made specially that concerning the payment of Tithes the which you may peruse in the Learned Sr. H. Spelm. Concil p. 405. During the Reign of King Edgar Hoel Dha held a National Council for all Wales at Tyquin which was wholly in favour of the Clergy this Council was held when Dunst in was Archbishop of Canterbury in whose time there were Two other Councils conven'd the one at Cartlage in Cambridgshire the other at Caln in Wiltshire After this William the Conqueror conven'd a Council of his Bishops at Winchester wherein himself was personally present with two Cardinals sent from Rome in this Council Stigand Archbishop of Canterbury was deposed and Lâ—â—frank a Lombard substituted in his room During the Reign of King Henry the First Anselm Archbishop of Canterbury summoned a Council at Westminster which Excommunicated all Married Priests half the Clergy at that time being Married or the Sons of Married Priests During the Reign of King Stephen Albericus Bishop of Hostia sent by Pope Innocent into England conven'd a Synod at Westminster wherein it was concluded That no Priest c. should have a Wife or a Woman in his house on pain of being sent to Hell Also that their Transubstantiated God should dwell but Eight days in the Box for fear of being Worm-eaten or moulded Under the Reign of King Henry the Second who disclaimed the Popes authority refused to pay Peter-pence and interdicted all Appeals to Rome a Synod was called at Westminster wherein was a great Contest between the two Archbishops of Canterbury and York for Precedency York appeals to Rome the Pope interposes and to end old Divisions makes a new distinction entituling York Primate of England and Canterbury Primate of all England Under the Reign of King Henry the Third a Council was held at Oxford under Stephen Langton Archbishop of Canterbury wherein many Constitutions were made as against Excess of demands for Procurations in Visitations against Pluralities Non-Residence and other abuses of the Clergy In the Ninth year of King Edward the First John Peckham Archbishop of Canterbury held a Council at Lambeth with his Suffragans some account whereof Walsingham gives us in these words viz. Frater Johannes Peckham Cantuariensis Archiepiscopus ne nihil fecisse videretur convocat Concilium apud Lambeth in quo non Evangelii Regni Dei praedicationem imposuit sed Constitutiones Othonis Ottobonis quondam Legatorum in Anglia innovans jussit eas ab omnibus servari c. Walsing in Ed. 1. He then made Sixteen Ecclesiastical Laws which are inserted among the Provincial Constitutions After this he summoned another Council of his Clergy at Reading wherein he propounded the drawing of all Causes concerning Advowsons to the Ecclesiastical Courts and to cut off all Prohibitions from the Temporal Courts in Personal Causes but upon the Kings express Command to desist from it this Council was dissolved Parker de Antiq. Eccles Anglic. fo 205. An 1290. During the Reign of King Henry the Fourth Thomas Arundel Archbishop of Canterbury conven'd a Synod at St. Pauls Church Lond. wherein the King joyned with them in punishing all Opposers of the Religion received Trussel de vita H. 4. Under King Henry the Fifth an Universal Synod of all the Bishops and Clergy was called at London where it was determined That the day of St. George and also of St. Dunstan should be a double Feast in holy Church In the same Kings Reign was a Convocation held at London conven'd by Henry Chichley Archbishop of Canterbury wherein were severe Constitutions made against the Lollards In the Reign of King Henry the Seventh a Synod was held at London by John Morton Archbishop of Canterbury to redress the Excess of the London Clergy in Apparel and frequenting of Taverns We had almost omitted the Synod in England An. 1391. under the Reign of King Richard the Second Simon Sudbury then Archbishop of Canterbury in which Synod it was Ordain'd That whosoever Appealed to Rome besides Excommunication should lose all his Goods and be Imprisoned during his Life vid. Hist of the Church of Great Britain p. 117. A Modern and Ingenious yet unfortunate Author well observes a Fourfold difference or distinction of Synods or Convocations in this Realm in reference to the several manners of their Meeting and degrees of their Power The First he states in point of Time before the Conquest The Second since the Conquest and before the Statute of Praemunire The Third after that Statute but before another made in the Reign of King H. 8. The Fourth after the 25th of the said King 1 Before the Conquest the Popes power prevailed not over the Kings of England who were then ever present Personally or Virtually at all Councils wherein matters both of Church and State were debated and concluded Communi consensu tam Cleri quam Populi Episcoporum Procerum Comitum nec non omnium Sapientum Seniorum populorumque totius Regni 2 After the Conquest but before the Statute of Praemunire the Archbishops used upon all emergent Cases toties quoties at their own discretions to assemble the Clergy of their respective Provinces where they pleased continuing and dissolving them at their pleasure which they then did without any leave from the King whose Canons and Constitutions without any further Ratifification were in that Age obligatory to all subjected to their Jurisdiction Such it seems were all the Synods from Lanfranck to Thomas Arundel Archbishop of Canterbury in which Arundels time the Statute of Praemunire was Enacted 3 After which Statute which much restrained the Papal power and subjected it to the Laws of the Land the Archbishops called no more Convocations by their sole and absolute Command but at the pleasure of the King by whose Writ and Precept only they were now and henceforth Summoned Of this Third sort of Convocations were all those kept by and from Thomas Arundel unto Thomas Cranmer or from the 16th of R. 2. unto the 25th of King H. 8. These Convocations also did make Canons as in Lindwoods Constitutions which were Obligatory although confirmed by no other Authority than what was meerly Synodical 4 The last sort of Convocations since the said Statute called the 25th of King H. 8. That none of the Clergy should presume to attempt alledge claim or put in ure any Constitutions or Ordinances Provincial or Synodals or any â—â—her Canons Constitutions or Ordinances Provincial by
for the visitation of the Ecclesiastical State and Persons and for-Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this Parliament be united and annexed to the Imperial Crown of this Realm This Act by a former Clause thereof doth Repeal the Statute of 1 and 2 Ph. Ma. c. 8. whereby the Acts of 26 H. 8. c. 1. and 35 H. 8. c. 3. were repealed so that the Act of Repeal being repealed the said Acts of H. 8. were implicitely revived whereby it is declared and enacted That the King his Heirs and Successors should be taken and accepted the only Supream Head in Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of this Realm as well the Title and style thereof as all Honours Dignities Prebeminencies Jurisdictions c. to the said dignity of Supream Head belonging c. By which Style Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever And by which Statute the Crown was but remitted and restored to its Ancient Jurisdiction which had been formerly usurped by the Bishop of Rome And this is that Supremacy which is here meant and intended 3. The said Statute of 1 Eliz. c. 1. doth not only repeal the said Stat. of 1 and 2 P. M. c. 8. but it is also a reviver of divers Acts asserting several branches of the Kings Supremacy and re-establishing the same it doth likewise not only abolish all Forreign Authority but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm with power to assign Commissioners for the exercise of Ecclesiastical Jurisdiction And then further Enacts to this effect viz. That all Ecclesiastical persons of what degree soever and all and every Temporal Judge Justice Mayor or other Lay or Temporal Officer or Minister and every other person having Fees or wages from the Crown within this Realm or the Dominions thereof shall upon his Corporal Oath testifie and declare in his Conscience That the Kings Majesty is the only Supream Governour of this Realm and of all other his Majesties Dominions and Countries as well in all Spiritual or Ecclesiastical things or causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power superiority preheminence or authority Ecclesiastical or Spiritual within this Realm And therefore doth utterly renounce and forsake all Forreign Jurisdictions powers superiorities and authorities and doth promise that from henceforth be shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to his power shall assist and defend all Jurisdictions priviledges preheminencies and authorities granted or belonging to the Kings Majesty his Heirs and Successors or united or annexed to the Imperial Crown of this Realm The practices of the Romanists in the 4th year of Queen Elizabeth and the danger thereby threatning both the Queen and State occasioned her to call a Parliament 12. Jan. An. 156 2 3 which passed an Act For assurance of the Queens Royal power over all Estates and Subjects within her Dominions By which Statute was enacted The Oath of Supremacy as also what persons were obliged to take it and who should have power to administer the same And this was both the original and the cause of that Oath By the said Statute of 1 El. c. 1. appears also what the penalty is for refusing to take the said Oath as also the penalty of maintaining a Forreign Authority as likewise what other persons than the fore-mentioned shall be obliged to take the said Oath which was afterwards again further ratified and established by the Statute of 5 Eliz. c. 1. 4. The King within his own Territories and Dominions is according to Bracton Dei Vicarius tam in Spiritualibus quam Temporalibus And in the Ecclesiastical Laws of Edward the Confessor the King is styled Vicarius summi Regis Reges regunt Ecclesiam Dei in immediate subordination to God Yea the Pope himself Eleutherius An. 169. styled King Lueius Dei Vicarius in Regno suo 5. The Supremacy which heretofore the Pope did usurp in this Kingdom was in the Crown originally to which it is now legally reverted The Kings Supremacy in and over all Persons and Causes Ecclesiastical within his own Dominions is essentially inherent in him so that all such Authority as the Pope here once usurped claiming as Supream Head did originally and legally belong to the Crown and is now re-united to it by several Statutes as aforesaid On this Supremacy of the King as Supream Head Sr. Edward Coke grounds the power of granting a Commission of Review after a Definitive Sentence in the Delegates for one Reason that he gives is because after a Definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commission Ad Revidendum And such Authority as the Pope had claiming as Supream Head doth of right belong to the Crown Quia sicut Fontes communicant aquas fluminibus cumulative non privitive sic Rex subditis suis Jurisdictionem communicat in Causis Ecclesiasticis vigore Statuti in hujusmodi Casu editi cumulative non privitive By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained That whoever shall affirm that the Kings Majesty hath not the same Authority in Causes Ecclesiastical that the godly Kings had among the Jews and Christian Emperors in the Primitive Church or impeach in any part his Regal Supremacy in the said Cases restored to the Crown and by the Laws of this Realm therein established shall be Excommunicated ipso facto and not be restored but only by the Archbishop after his repentance and publick revocation of those his wicked Errors 7. The King being next under God Supream Governour of the Church of England may Qua talis redress as he shall see cause in all matters of Spiritual and Ecclesiastical Jurisdiction for the conservation of the Peace and Tranquillity of his Realms The Pope as appears by the Stat. of 25 H. 8. c. 21. claimed full power to dispense with all human Laws of all Realms in all Causes which he called Spiritual Now the King as Supream hath the same power in himself within his own Realms legally which the Pope claimed and exercised by Usurpation Eadem praesumitur mens Regis quae est Juris The Kings immediate personal ordinary inherent power which he executes or may execute Authoritate Regia suprema Ecclesiastica as King and Supream Governour of the Church of England is one of these Flowers qui faciunt Coronam Nor is the Kings immediate power restrained by such Statutes as authorize inferiour persons The Lord Chief Justice Hobart asserts That although the Stat. of 25 H. 8. 21. doth say That all Dispensations c. shall be granted in manner and
the Convocations of the same Clergy are and always have been and ought to be assembled only by the Kings Writ The Convocation is under the power and Authority of the King 21 E. 3. 45. b. 12. After the Reign of King H. 8. this Supremacy in the Crown was signally exercised by King Ed. 6. styling himself Supream Head under Christ of the Church of England and Ireland in the Preface of his Injunctions given as well to all the Clergy as Laity of this Realm the Close whereof is as followeth viz. All which singular Injunctions the Kings Majesty ministreth unto his Clergy and their Successors and to all his loving Subjects straitly charging and commanding them to observe and keep the same upon pain of Deprivation Sequestration of Fruits or Benefices Suspension Excommunication and such other Coercion as to Ordinaries or others having Ecclesiastical Jurisdiction whom his Majesty hath appointed for the due execution of the same shall be seen convenient Charging and commanding them to see these Injunctions observed and kept of all persons being under their Jurisdiction as they will answer to his Majesty for the contrary And his Majesties pleasure is That every Justice of Peace being required shall assist the Ordinaries and every of them for the due execution of the said Injunctions 14. The Three first Articles to be enquired of at the Visitations within the Province of Canterbury in the second year of the Reign of the said King Edward the Sixth were as followeth viz. 1. Whether Parsons Vicars and Curates and every of them have purely and sincerely without colour or dissimulation four times in the year at the least preached against the Usurped power pretended Authority and Jurisdiction of the Bishop of Rome 2. Whether they have preached and declared likewise four times in the year at least that the Kings Majesties power authority and preheminence within his Realms and Dominions is the highest power under God 3. Whether any person hath by writing cyphring preaching or teaching deed or act obstinately holden and stand with to extol set-forth maintain or defend the authority jurisdiction or power of the Bishop of Rome or of his See heretofore claimed and usurped or by any pretence obstinately or maliciously invented any thing for the extolling of the same or any part thereof Likewise by the Articles of Religion agreed on by the Convocation held in London and published An. 1553. by the Authority of King Ed. 6. it is declared That the King of England is Supream Head in Earth next under Christ of the Church of England c. and that the Bishop of Rome hath no Jurisdiction in this Realm The like you have in the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation held in London An. 1562. and published by the Authority of Queen Elizabeth That the Queens Majesty hath the chief Power in this Realm of England and other her Dominions unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any Forreign Jurisdiction Which Articles being the Articles of the Church of England were afterwards ratified and confirmed by his Majesty King CHARLES I. of ever Blessed Memory by his Royal Declaration thereunto prefixed in which Declaration you have as followeth viz. That we are Supream Governour of the Church of England and that if any difference rise about the External Policy concerning the Injunctions Canons or other Constitutions whatsoever thereto belonging the Clergy in their Convocation is to order and settle them having first obtained leave under our Broad Seal so to do and We approving their said Ordinances and Constitutions provided that none bâ— made contrary to the Laws and Customes of the Land Likewise in the first of the aforesaid Injunctions of King Ed. 6. as also in the first of the Injunctions given by Q. Elizabeth concerning both the Clergy and Laity of this Realm published Ann. 1559. being the first year of her Reign it is enjoyned That all Deans Archdeacons Parsons Vicars and all other Ecclesiastical persons shall faithfully keep and observe c. all and singular Laws and Statutes made for the restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and abolishing of all Forreign power repugnant to the same c. By the Statute of 25 H. 8. c. 19. Appeals to Rome are prohibited and it is Ordained that in default of Justice in any of the Courts of the Archbishops of this Realm it shall be lawful to appeal to the King in his Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is given to the King in Chancery upon Sentences in places exempt in the same manner as was before used to the See of Rome And as by the said Statute there may be an Appeal to the King in Chancery when the Suit is in the Archbishops Court or some Peculiar exempt so in some Cases the Appeal may be to the King generally as he is Supream Head of all Ecclesiastical Jurisdiction within the Realm for by the Statutes made in the time of King Hen. 8. the Crown was only remitted and restored to its Ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. Fitz. Aid del Roy 103. Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Rex est Mixta persona cum Sacerdote Et causa Spiritualis Committi potest Principi Laico Cassan in Catal. glo mund p. 5. Consid 24. The King of England c. is Persona Sacra mixta cum Sacerdote and at his Coronation by a solemn Consecration and Unction becomes a Spiritual person Sacred and Ecclesiastical and then hath tam Vestem Dalmaticam as an emblem of his Royal Priesthood quam Coronam Regni in respect of his Regal power in Temporals and is Supream Governour in all Causes and over all Persons as well Ecclesiastical as Civil The King is Supream Ordinary by the Ancient Common Law of England before the Statute of 24 H. 8. cap. 12. for a Resignation might be made to him he might make a Grant of a Church to a man to hold to his own proper use he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary but also give him Episcopal Jurisdiction he might Present to Free Chappels in default of the Dean by Lapse and that as Ordinary and in respect of his Supream Ecclesiastical Jurisdiction he might dispense with one not lawfully born to be a Priest albeit the Ecclesiastical Laws allowed within this Realm do prohibite it but the reason is for that it is not Malum in se but Malum prohibitum In a word All that the Pope was wont to do in such cases within this Realm as
which in the days of King Lucius was an Archbishoprick as aforesaid till St. Augustine in the year 598 took on him the Title of Archbishop of England setling his See at Canterbury 8. Upon the abrogating of the Popes power in England by King H. 8. in the Seventh year of his Reign it was concluded that the Archbishop of Canterbury should no more be styled the Popes Legate but Primate and Metropolitan of all England at which time Tho. Cranmer Fellow of Jesus-Colledge in Cambridge who pronounced the Divorce from Queen Katharine of Spain upon his advice given the King to leave the Court of Rome and to require the Opinions of Learned Divines being then in Germany procured such favour with the King that he caused him to be elected to this See of Canterbury and was afterwards with the then Bishop of Duresme made Tutor to King Edward the Sixth 9. The Archbishop of Canterbury was supposed to have had a concurrent Jurisdiction in the inferiour Diocesses within his Province which is not denied in the case of Dr. James only it is there said That was not as he was Archbishop but as he was Legatus Natus to the Pope as indeed so hâ— was before the tâ—me of King H. 8. as aforesaid by whom that Power together with the Pope was abrogated and so it ceased which the Archbishop of York never had nor ever claimed as appears in the forecited Case where it is further said That when there is a Controversie between the Archbishop and a Bishop touching Jurisdiction or between other Spiritual Persons the King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and that is a right of his Crown to distribute to them that is to declare their Bounds Consonant to that which is asserted in a Case of Commendam in Colt and Glovers Case against the Bishop of Coventry and Lichâ—ield where it is declared by the Lord Hobart Chief Justice That the King hath an immediate personal originary inherent Power which he executes or may execute Authoritate Regia Suprema Ecclesiastica as King and Sovereign Governour of the Church of England which is one of those Flowers qui faciunt Coronam which makes the Royal Crown and Diadem in force and vertue The Archbishop of Canterbury as he is Primate over All England and Metropolitan hath a Supereminency and some power even over the Archbishop of York hath under the King power to summon him to a National Synod and Archiepiscopus Eboracensis venire debet cum Episcopis suis ad nutum ejusâ— ut ejus Canonicis dispositionibus Obediens existat Yet the Archbishop of York had anciently not only divers Bishopricks in the North of England under his Province but for a long time all the Bishopricks of Scotland until little more than 200 years since and until Pope Sixtus the Fourth An. 1470. created the Bishop of St. Andrews Archbishop and Metropolitan of all Scotland He was also Legatus Natus and had the Legantine Office and Authority annexed to that Archbishoprick he hath the Honour to Crown the Queen and to be her perpetual Chaplain Of the forementioned Diocesses of his Province the Bishop of Durham hath a peculiar Jurisdiction and in many things is wholly exempt from the Jurisdiction of the Archbishop of York who hath notwithstanding divers Priviledges within his Province which the Archbishop of Canterbury hath within his own Province 10. The Archbishop is the Ordinary of the whole Province yet it is clear That by the Canon Law he may not as Metropolitan exercise his Jurisdiction over the Subjects of his Suffragan Bishops but in certain Cases specially allowed in the Law whereof Hostiensis enumerates one and twenty The Jurisdiction of the Archbishop is opened sometimes by himself nolente Ordinario as in the Case of his Visitation and sometimes by the party in default of Justice in the Ordinary as by Appeal or Nullities Again it may sometimes be opened by the Ordinary himself without the party or Archbishop as where the Ordinary sends the Cause to the Archbishop for although the Canon Law restrains the Archbishop to call Causes from the Ordinary Nolente Ordinario save in the said 21 Cases yet the Law left it in the absolute power of the Ordinary to send the Cause to the Archbishop absolutely at his will without assigning any special reason and the Ordinary may consult with the Archbishop at his pleasure without limitation Notwithstanding which and albeit the Archbishop be Judge of the whole Province tamen Jurisdictio sua est signata non aperitur nisi ex causis Nor is the Subject hereby to be put to any such trouble as is a Grievance and therefore the Law provides that Neminem oportet exire de Provincia ad Provinciam vel de Civitate ad Civitatem nisi ad Relationem Judicis ita ut Actor forum Rei sequatur 11. If the Archbishop visit his Inferiour Bishop and Inhibit him during the Visitation if the Bishop hath a title to Collate to a Benefice within his Diocess by reason of Lapse yet he cannot Institute his Clerk but he ought to be presented to the Archbishop and he is to Institute him by reason that during the Inhibition his power of Jurisdiction is suspended It was a point on a special Verdict in the County of Lincoln and the Civilians who argued thereon seemed to agree therein but the Case was argued upon another point and that was not resolved Likewise by the Statute of 25 H. 8. c. 21. the Archbishop of Canterbury hath power to give Faculties and Dispensations whereby he can as to Plurality sufficiently now Dispense de jure as Anciently the Pope did in this Realm de facto before the making of that Statute whereby it is enacted That all Licenses and Dispensations not repugnant to the Law of God which heretofore were sued for in the Court of Rome should be hereafter granted by the Archbishop of Canterbury and his Successors 12. By the Constitutions and Canons Ecclesiastical Edit 1603. Can. 94. It is Ordained That no Dean of the Arches nor Official of the Archbishops Consistory shall originally Cite or Summon any person which dwelleth not within the particular Diocess or Peculiar of the said Archbishop c. without the License of the Diocesan first had and obtained in that behalf other than in such particular Cases only as are expresly excepted and reserved in and by the Statute of 23 H. 8. c. 9. on pain of suspension for three months In the Case of Lynche against Porter for a Prohibition upon the said Statute of 23 H. 8. c. 9. it was declared by the Civilians in Court That they used to Cite any Inhabitant of and in London to appear and make Answer in the Archbishop of Canterbury's high Court of Arches originally And Dr. Martyn said It had been so used for the space of 427 years before the making of the Statute and upon
as Deacons and Curates in places appointed 2. Under this Name or Appellation of Bishops are contained Bishops Primates Metropolitans Patriarchs and Summus Pontifex Dist 21. c. 1. And the Presbyters also C. Legimus § 1. Dist 93. Spec. de Instr Edit Sect. 14. vers de Episcopo and for such commonly used and taken in the New Testament l. 14. c. de Episc Cler. In some Acts of Parliament we find the Bishop to be called Ordinary and so taken at the Common Law as having Ordinary Jurisdiction in Causes Ecclesiastical albeit in the Civil Law whence that word Ordinarius is taken it signifies any Judge authorized to take Cognizance of Causes proprio suo jure as he is a Magistrate and not by way of Deputation or Delegation The word Ordinary doth chiefly take place in a Bishop and other Superiours who alone are Universal in their Jurisdictions yet under this word are comprized also other Ordinaries viz. such as to whom Ordinary Jurisdiction doth of right belong whether by Priviledge or by Custome Lindw de Constit c. Exterior ver Ordinarii The Pallium Episcopale or Bishops Pall mentioned as Sr. Ed. Coke observes in some Statutes and many Records and Histories is a Hood of white Wool to be worn as Doctors Hoods upon the Shouldiers with Four Crosses woven into it c. for the Form and Colours whereof vid. Antiq. Brit. Eccles fo 1. This Pallium Episcopale is the Arms belonging to the See of Canterbury vid. Cassan de glo mun p. 4. fo 103. a. 26. Consid ubi multa Legas de Pallio Henry Dean the 65th Archbishop of Canterbury An. 1502. had Pallium Archiepiscopatus Insigne sent him from Pope Alexander 6. by his Secretary Adrian which by the Bishop of Lichfield and Coventry Authorized thereto by the Pope was presented him at Lambeth in these words viz. Ad honorem Dei Omnipotentis c. Tibi tradimus Pallium de Corpore beati Petri sumptum plenitudinem videlicet Pontificalis Officii c. whereupon he swore Canonical obedience to the Apostolical See of Rome 3. The Kings of England were Anciently the Founders of all the Archbishopricks and Bishopricks in this Realm and also in Wales the Bishops thereof were Originally of the Foundation of the Princes of Wales Bishops in England originally were Donative per traditionem Baculi Pastoralis Annuli until King John by his Charter granted that they should be Eligible Chart. 25. Jan. An. Reg. 17. De Commuâ—i Consensu Baronum after which came in the Congé d'Eslire And at this day the Bishopricks in Ireland are Donative Rolls 342. The Patronage of all Bishopricks is in the King so as that he gives leave to the Chapters to chuse them In Ancient times the King gave the Bishopricks and then afterwards gave leave to the Chapters to chuse them as aforesaid The learned Serjeant Roll in that part of his Abridgment touching this Subject makes mention of 1 E. 1. Rot. Clauso Memb. 11. in dorso where there is this Protestation made by the King Cum Ecclesia Cathedralis viduatur de jure debeat soleat de Consuetudine provideri per Electionem Canonicam ab ejusmodi potissimum Celebrandam Collegiis Capitulis personis ad quos jus pertinet petita tamen prius ab Illustri Rege Angliae super hoc Licentia obtenta demum Celebrata Electione persona Electa eidem Regi habeat Praesentari ut idem Rex contra personam ipsam possit proponere si quid rationabile habeat contra eum And the Protestation goes further That in case the Pope makes Provision without such Canonical Election the King shall not be obliged to give him his Temporalties yet of grace for the time present he give the Temporalties to the Abbot Elect of Canterbury Thus the Election of Bishops by Deans and Chapters began by the grant of the King but the Grant was to Elect after License first had and obtained as appears by the Stat. of 25 Ed. 3. Stat. de Provisoribus Rastal 325 d. And King John was the first that granted it by his Charter dated 15 Jan. An. 16. William Rufus K. after the Archbishop of Canterbury's death kept the See without an Archbishop for the space of four years and then assum'd divers other Ecclesiastical Promotions into his own hands that were then vacant putting to Sale divers Rights and Revenues of the Church But King H. 1. made a Law against Reservations of Ecclesiastical Possessions upon Vacancies In the time of Edward the Confessor the Prelates used to receive Investitute from the King by giving them the Pastoral Staff and a Ring And so it was used in the time of H. 1. but Suffragans were invested only by the Ring without the Staff for that they are not Bishops so fully and compleatly as the other 4. To the Creation of Bishops are requisite Election Confirmation Consecration and Investiture Upon the vavancy of a See the King grants his License under his Great Seal to the Dean and Chapter of such vacant Cathedral to proceed to an Election of such a person as by his Letters Missive he shall nominate and appoint to succeed in such vacant Archbishoprick or Bishoprick which Election must be within twenty days next after their receiving such License or Letters Missive upon failure whereof they run the danger of a Praemunire Or if above twelve days after their receipt thereof the Election be deferr'd the King may by his Letters Patent nominate or present to such vacant Bishoprick to the Archbishop or Metropolitan of that Province wherein such See is void or unto one Archbishop and two other Bishops or to four such Bishops as his Majesty shall think fit in case upon such Nomination or Presentment by the King the default of Election by the Dean and Chapter be to the Office and Dignity of a Bishop Otherwise if they Elect according to his Majesties pleasure in his Letters Missive the Election is good and upon their Certificate thereof unto his Majesty under their Common Seal the person so Elected is reputed and called Lord Bishop Elect yet is he not thereby compleat Bishop to all intents and purposes for as yet he hath not Potestationem Jurisdictionis neque Ordinis nor can have the same untill his Confirmation and Consecration for which Reason it is that if after such Election and before Consecration a Writ of Right be brought in the Court of a Mannor belonging to such Bishoprick it is not directed Episcopo but Ballivis of the Bishop Elect. The order of making a Bishop consists chiefly in these Eight things viz. 1. Nomination 2. Congé d'Eslire 3. Election 4. Royal Assent 5. Confirmation 6. Creation 7. Consecration 8. Installation Vid. Grendon's Case in Plowd Trin. 17 Jac. B. R. Sobrean Teige vers Kevan Roll. Rep. par 2. The Creation of a Bishop is in this Solemn
vacancy of a Bishoprick the Dean and Chapter by virtue of his Majesties License under the Great Seal of England hath proceeded to the Election of a new Bishop in pursuance of and according to his Majesties Letters Missive on that behalf and Certificate thereof made unto the Kings Majesty under their Common Seal then follows the Confirmation Consecration and Investiture by the Archbishop or Metropolitan of that Province wherein such Bishoprick was void the said Election having upon such elected Bishops Oath of Fealty to the Kings Majesty been first signified to the Archbishop by the King under his Great Seal whereby the said Archbishop is required to Confirm the said Election and to Consecrate and Invest the person Elected And now he is compleat Bishop as well unto Temporalties as Spiritualties yet after his Confirmation and before his Consecration the King may if he please ex gratia grant him the Temporalties But after his Consecration Investiture and Instalment he is qualified to sue for his Temporalties out of the Kings hands by the Writ de Restitutione Temporalium And yet it seems the Temporalties are not de jure to be delivered to him until the Metropolitan hath certified the time of his Consecration although the Freehold thereof be in him by his very Consecration But if during the Vacation of Archbishopricks or Bishopricks and while their Temporalties are in the Kings hands the Freehold-Tenants of Archbishops or Bishops happen to be attainted of Felony the King by his Prerogative hath the Escheats of such Freeholders-Lands to dispose thereof at his pleasure saving to such Prelates the Service that is thereto due and accustomed Before the Conquest the Principality of Wales was held of the King of England and by the Rebellion and forfeiture of the Prince the Principality came to the King of England whereby the Bishopricks were annexed to the Crown and the King grants them their Temporalties 10 H. 4. 6. 7. The manner of making a Bishop is fully described in Evans and Kiffin's Case against Askwith wherein it was agreed That when a Bishop dies or is Translated the Dean and Chapter certifie the King thereof in Chancery and pray leave of the King to make Election Then the King gives his Congé d'Esâ—ire whereupon they make their Election and first certifie the same to the party Elect and have his consent Then they certifie it to the King in Chanceâ—y also they certifie it to the Archbishop and then the King by his Letters Patents gives his Royal Assent and commands the Archbishop to Confirm and Consecrate him and to do all other things necessary thereunto whereupon the Archbishop examines the Election and the Ability of the party and thereupon confirms the Election and after Consecrates him according to the usage upon a New Creation And upon a Translation all the said Ceremonies are observed saving the Consecration which is not in that case requisite for that he was Consecrated before 8. Bishopricks were Donatives by the King till the time of W. Rufus and so until the time of King John Read for that the History of Eadmerus Vid. Case Evans vers Ascouth in â—in Caâ— Noy 's Rep. It hath been generally held That before the Conquest and after till the time of King John Bishops were Invested by the King per Baculum Annulum but King John by his Charter granted That there should be a Canonical Election with Three Restrictions 1. That leave be first asked of the King 2. His Assent afterwards 3. That he shall have the Temporalties during the Vacation of the Bishoprick whereof mention is made in the Stat. of 25 Ed. 3. de Provisoribus and which is confirmed by the Stat. of 13 R. 2. c. 2. Also the Law in general is positive therein That in the making of all Bishops it shall be by Election and the Kings Assent and by the 25 H. 8. the Statute for Consecration of Bishops makes it more certain And if the Pope after the said Charter did use to make any Translation upon a Postulation without Election and Assent of the King it was but an Usurpation and contrary to the Law and restrained by 16 R. 2. and 9 H. 4. 8. And after the 25 H. 8. it was never used to have a Bishop by Postulation or any Translation of him but by Election as the said Statute prescribes And the form of making a Bishop at this day is after the same manner as aforesaid and according to the said Statute 9. The Interest and Authority which a Bishop Elect hath is That he is Episcopus Nominis non Ordinis neque Jurisdictionis But by his Confirmation he hath Potestatem Jurisdictionis as to Excommunicate and Certifie the same 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease But after Election and Confirmation he hath Potestatem Ordinationis for then he may Consecrate confer Orders c. For a Bishop hath Three Powers 1. Ordinis which he hath by Consecration whereby he may take the Resignation of a Church confer Orders consecrate Churches And this doth not appertain to him quatenus Bishop of this or that place but is universal over the whole World So the Archbishop of Spalato when he was here conferr'd Orders 2. Jurisdictionis which is not Universal but limited to a place and confin'd to his See This power he hath upon his Confirmation 3. Administratio rei familiaris as the Government of his Revenue and this also he hath upon his Confirmation The Bishop acts either by his Episcopal Order or by his Episcopal Jurisdiction By the former he Ordains Deacons and Priests Dedicates or Consecrates Churches Chappels and Churchyards administers Confirmation c. By the latter he acts as an Ecclesiastical Judge in matters Spiritual by his Power either Ordinary or Delegated 10. An. 1430. Temp. Reg. H. 6. Hen. Chicheley Archiepisc Cant. in Synodo Constitutum est Ne quis Jurisdictionem Ecclesiasticam exerceret nisi Juris Civilis aut Canonici gradum aliquem ab Oxoniâ—nsi vel Cantabrigiensi Academia accepisset Ant. Brit. fo 284. nu 40. The power of the Bishop and Archbishop is derived from the Crown as was held in Walkers Case against Lamb where it was also held That the Grant of a Commissary or Official to one was good notwithstanding he were a Lay man and not a Doctor of Law but only a Batchelour of Law for the Court then said That the Jurisdiction of the Bishop and Archdeacon is derived from the Crown by usage and prescription and that in it self as it is coercive to punish Crimes or to determine Matrimonial Causes and Probate of Testaments and granting of Administrations being Civil Causes are derived from the Crown and not incident de mero jure to the Bishop which appears by Henslows Case par 9. Cawdry's Case par 5. 1 Ed. 6. c. 2. the Stat. of 37 H. 8. and divers other Authorities and the Statute of 37 H. 8. c.
but not as to his Judicial Office as to Confirm Leases and the like By the Canon Law he that is the Archipresbyter is also called Dean scil Presbyterorum vel Ecclesiae Cap. ad haec De Offic. Archidiac Cano. innovamus 60. Distinct And because the Dean of a Church understand it of the Roman Church in locum Archipresbyteri subrogatus est Rotae Decis 451. in novis rursum in Decis 443. The Archipresbyter was so called because he was in some certain matters and causes set or appointed over the Priests or Presbyters and such as were of the Sacerdotal Office specially in the absence of the Bishop Cap. 1. 2. De Offic Archipresb The Dean is such a Dignity that the Canon Law styles him honorabiliorem partem Capituli Cap. post Electionem c. 7. de Concess Praebend c. cum inter ca. 18. ibi Panor gloss de Elect. And in a large sense a Dean may be said to be the chief of any that are of the same state and order Gloss in rubr de Decanis lib. 12. C. ibi Alceat and so the Canons of the Church of Constantinople tanquam Digniores were by Honorius and Theodosius called Decani L. non plures 4. de Sacros Eccles lib. 1. C. tit 5. and the more honourable inter Rotae Auditores is the Dean of the Pope's Chappel propter Ministerium quod vocatur Mithrae Lud. Gomes in proaem ad Reg. Cancell de Prothonotariis The truth is the Canon Law in express terms says that Deconatus or a Deanary est Nomen speciale Dignitatis Cap. cum illis vero § illis de Praebend in 6. that is when it refers to praeeminency in any Church Cathedral or Collegiate Gemin Cons 131. nu 5. ver expressit de Deconatu For as to Deans Rural it is otherwise Cap. licet Canon de Elect. in 6. the Dignity qua talis belonging properly to the other viz. Decano Capituli who is Caput principale ipsius yet under the notion or appellation of a Chapter the Dean thereof is not comprehended unless he be specially mentioned or nominated Rebuff in Tract nominat q. 8. nu 33. Barbos in 3 Decret c. post Electionem de Concess Praebend nu 3. 8. Chapter Capitulum so termed by the Canonists not properly but metaphoricaily quasi a Little head or a kind of Head not only to rule and govern the Diocess in the Vacation of the Bishoprick but also when the See is full to assist the Bishop as a Council by way of Advice in matters pertaining to the Diocess Vid. Panor in cap. Capitulum extra de Rescript The Chapter consisting of a Dean Canons and Prebends is Clericorum Congregatio sub uno Decano in Ecclesia Cathedrali or it signifies Congregationem Clericorum in Ecclesia Cathedrali Conventuali Regulari vel Collegiata Of these Chapters some are Ancient some New the New are those which were founded or translated by King Henry the Eighth in the places of Abbots and Covents or Priors and Covents Or those which are annexed unto new Bishopricks founded by H. 8. as were Bristol Chester and Oxford This word Capitulum or Chapter hath in addition to the Premisses other significations in Lindwoods Provincials where he speaks de Capitulis Ruralibus of Chapters Rural Lindw tit de Constit cap. quia incontinentiae gloss verb. Capitulis Ruralibus and there acquaints us with no less than six significations of this word Sometimes says he it is taken for the place in quo fiunt Communes tractatus Collegiatorum Sometimes it is taken for the place In quo fiunt Disciplinae delinquentium Cap. Reprehensibilis in fi Extr. de Appell Sometimes it is taken pro Decretali vel abia certa distinctione Sacrae Scripturae Cap. cum supr Extr. de Sepult Sometimes it is taken pro Capitulis Ruralibus as aforesaid that is when in Lecis minus insignibus viz. in Rure Constitutis known by the name of Conventus in Otho's Constitutions Cap. Sacramenta ad finem ver Conventib Sometimes it is taken for a Collection of persons adinvicem de his quae eis incumbunt in Locis ad hoc assignatis tractantium and being taken in this sense it may be understood sometimes for persons Congregated in a Metropolitan or Cathedral Church and sometimes for persons congregated in a Church Conventual Regular or Collegiate and each of these last may in a large sense be said to be a Collegiate Church according to the description thereof viz. That Ecclesia Collegiata est Collectio hominum simul viventium but to speak properly that is Capitulum which is respectis Ecclesiae Cathedralis That Conventus which is respectu Ecclesiae Regularis and that Collegium which is respectu Ecclesiae Inferioris ubi est Collectio viventium in Communi And sometimes Capitulum is taken for a Collection of many persons not living in Common sed ob tracatus Communes inter se habendos ad aliquem locum Constuentium according to which a convening together of many Rectors Vicars and other Ecclesiastical persons ob tractatus communes inter se habendos etiam dicitur Capitulum Panormitan understands it pro Collectione seu pro Collegio ipsorum Canonicorum but withal says it hath divers significations all which he comprizes in this one Verse Distinguit minuit Locat Collectio fertur Distinguit when one Subject is distinguished from another in any Tract or Treatise Minuit when it stands diminutively Capitulum quasi parvum Caput as aforesaid understand it secundum modum Locat when it is taken for the Place it self where the Canons are met or conven'd Collectio and so it is taken pro ipso Collegio as aforesaid Panorm de Rescript Extr. c. Capitum Whereof there are three inseparable signs as one Common Seal one Common Stock or Treasure and one Common Head or Rector 9. By the Canon Law the words Capitulum Conventus Coetus and Concilium are as it were Synonymous but the terms Capitulum and Conventus are frequently used Promiscuously But to speak properly according to that Law Conventus is said to be Congregatio Ecclesiae Regularis and Capitulum or a Chapter is said to be Congregatio Ecclesiae Secularis The word Chapter taken as here in a proper Canon-sense is a name Collective having a Plural signification yet in reference to different things may be accommodated as well to the Singular as the Plural 10. A Chapter Ecclesiae Cathedralis consists of persons Ecclesiastical Canons and Prebendaries whereof the Dean is chief all subordinate to the Bishop to whom they are as Assistants in matters relating to the Church for the better ordering and disposing the things thereof and for Confirmation of such Leases of the Temporalties and Offices relating to the Bishoprick as the Bishop from time to time shall happen to make It seems that at the Common Law by the Gift or Grant of Lands to a Dean and Chapter being a Corporation Aggregate the Inheritance or
The Case of Tithes is parallel to the Case of Proxies and agrees therewith in all points For as Instruction was the cause of the payment of Tithes So Visitation which is ever accompanied with Instruction Littl. ca. de Frankalmoigne 30. b. was the cause of the Proxies And as Tithes are now due and payable to Lay-persons which have purchased Impropriate Rectories although they do not give any Instruction So Proxies are due and payable to Ordinaries out of the Impropriations and Religious houses dissolved although their Visitation ceases And as none can prescribe de non decimando as is commonly held in the Common Law So the Canon Law hath a Rule Quod nulla est adversus Procurationem praescriptio Inst Jur. Canon lib. 2. cap. de Censibus Also Proxies which resemble Tithes in other points may be well compared to them in this point viz That they shall not be subject to extinguishment by unity of possession CHAP. X. Of Diocesan Chancellors Commissaries Officials and Consistories 1. A Description of the Office of such Chancellors and how they differ from the Bishops Commissaries 2. The Antiquity and necessary use of such Chancellors 3. What the Canons Ecclesiastical require touching their Office 4. Whether a Divine that is not a Civilian may be a Chancellour 5. Where and before whom the Bishops Consistories are held 6. What is meant or intended by the word Consistory 7. The great Antiquity of the Bishops Consistories 8. That Antiquity further confirmed and proved 9. The difference between Consistorium and Tribunal 10. Incidents to the Chancellors Office as he is Oculus Episcopi 11. A short digression touching Administrators 12. The Laws and Canons touching Summoners 13. The Constitutions Provincial what provision there touching this Office of Summoners 14. A Judgment at Common Law in Action on the Case against an Apparitor or Summoner for Citing a man wrongfully into the Ecclesiastical Court 15. What a Commissary is how to be qualified with the Precincts of his Jurisdiction 16. Whether a Commissary may Cite persons of several Parishes to appear at his Visitation-Court 17. A Case at Common Law touching a Commissary made by a Dean 18. Whether a meer Lay-person may be a Commissary or Official Other points in Law touching that Office and the Grant thereof 19. Sufficiency or Insufficiency or other defects in Chancellors Commissaries c. properly cognizable not in the Temporal but Ecclesiastical Courts 20. The Office of Chancellorship as to the Right of it is held to be of Temporal but as to the Exercise thereof of Ecclesiastical cognizance 21. Whether the Offices of Chancellor Register c. in Ecclesiastical Courts be within the Statute of 5 Ed. 6. 1. THe Chancellor of a Diocess is a Church-Lawyer or the Bishops-Lawyer or that person who is Commissionated to be aiding and assisting to the Bishop in his Jurisdiction not confined to any one place of the Diocess nor limited as the Bishops Commissaries are only to some certain causes of the Jurisdiction but every where throughout the whole Diocess supplying the Bishops absence in all matters and causes Ecclesiastical within his Diocess By the Statute of 37 H. 8. c. 17. a Doctor of the Civil Law lawfully deputed may exercise all Ecclesiastical Jurisdiction and the Censures thereof By this Chancellor the Bishop within his Diocess keeps his Court according to the Ecclesiastical Laws in all matters pertaining to his Jurisdiction or otherwise relating more immediately to the Church or Government of the Clergy As Bishops in their Episcopal audience have had in all Ages the cognizance of all matters Ecclesiastical as well Civil as Criminal within the Jurisdiction of their Diocess so they have ever had to that end their Chancellors whom the Law calls Ecclesiecdici or Episcoporum Ecdici persons experienced in the Civil and Canon Laws to assist them in matters of Judgment and those whom we now call the Bishops Chancellours are the very self same persons in Office that anciently did exercise Ecclesiastical Jurisdiction under Bishops and were called Ecclesiecdici Papias per Gothofred in L. omnem C. de Episc Cler. in § praeterea ibid. Dr. Ridl View par 2. cap. 2. sect 3. Who forasmuch as they have with them the Bishops Authority every where within the Diocess for matters of Jurisdiction and in that the Bishops and They make but one Consistory are called the Bishop's Vicars General both in respect of their Authority which extendeth throughout the whole Diocess as also to distinguish them from the Commissaries of Bishops whose Authority as it is restrained only to some certain place of the Diocess so also to some certain causes of the Jurisdiction limited unto them by the Bishops for which reason the Law calls them Officiales Foraneos quasi Officiales astricti cuidam foro Dioeceseos tantum Dr. Ridl ibid. 2. Dr. Ridley in his View of the Civil and Ecclesiastical Law says that Chancellors of Diocesses are nigh of as great Antiquity as Bishops themselves and are such necessary Officers to Bishops that every Bishop must of necessity have a Chancellor and that if any Bishop should seem to be so compleat within himself as not to need a Chancellor yet the Archbishop of the Province in case of refusal may put a Chancellor on him in that the Law presumes the Government of a whole Diocess a matter of more weight than can be well sustained by one person alone and that although the Nomination of the Chancellour is in the Bishop yet his Authority is derived from the Law Hostiens Sum. de Offic. Vicar nu 2. For which reason the Law understands him as an Ordinary as well as the Bishop Hostiens ibid. It is most probable that the multiplicity and variety of Ecclesiastical Causes introduced the use and Office of Chancellors originally for after that Princes had granted to Ecclesiastical persons their Causes and their Consistories and Circumstances varying these Causes into a more numerous multiplication than were capable of being defined by like former Presidents necessity call'd for new Decisions and they for such Judges as were experienced in such Laws as were adapted to matters of an Ecclesiastical Cognizance which would have been too prejudicial an Avocation of Bishops from the exercise of their more Divine Function had not the office of the Chancellor in determining such matters been an expedient to prevent the said prejudice or inconvenience 3. By the Constitutions and Canons Ecclesiastical it is Ordered That upon the days of the Visitation every Chancellor Archdeacon Commissary and Official as also at the ordinary time when Church-wardens are Sworn shall deliver them such Books of Articles as whereon to ground their Presentments Also that they shall not suffer any to be cited into Ecclesiastical Courts by any General process of Quorum Nomina nor the same person to be cited into several Ecclesiastical Courts for one and the same Crime for which end the Chancellour and Archdeacon are within one month next after the
the Bishop of London Willielmus Dei gratia Rex Anglorum R. Bainardo S. de magna Villa P. de Vabines caeterisque meis Fidelibus de Essex de Hertfordshire de Middlesex Salutem Sciatis vos omnes c. In which Charter the Tenor of the foresaid Charter is recited word by word in English The like Charter he also there says is in the Book of Charters of the Archbishop of Canterbury Whereby it is most evident that the Bishops Consistories are of great Antiquity and that they were erected when Causes Ecclesiastical were removed from the Tourne which is a Court of Record holden before the Sheriff to the Consistory So that this Law made by the Conqueror seems as Mr. Blount in his Nomo-Lexiâ—on on this word well observes to give the Original of the Bishops Consistory as it now sits with us distinct and divided from the Hundred or County-Court wherewith it seems probable in the time of the Saxons to have been joyn'd 9. Lindwood in the Provincial Constitutions upon this word Consistorium quoad Episcopos puts this difference between Consistorium and Tribunal Tribunal says he est Locus in quo sedet Ordinarius inferior but Consistorium est Locus in quo sedet princeps ad Judicandum Lindw de foro Competent c. excussis in ver Consistoria Albeit according to the vulgar acceptation of these words we refer Tribunal to any place of Judicature but Consistorium to that only which is of Ecclesiastical Jurisdiction 10. This Chancellor of a Diocess as he is Oculus Episcopi ought to have an eye into all parts of the Diocess and hath immediately under the Ordinary Jurisdiction of all matters Ecclesiastical within the same not only for reformation of Manners and punishment of Enormities of a Spiritual nature by Ecclesiastical Censures but also in Causes Matrimonial and Testamentary as to the Probat of Wills and granting Letters of Administration of the Goods of a person dying Intestate where there are not Bona Notabilia In which case the Will shall be proved or Administration granted by the Prerogative of the Archbishop And wherever there is an Administration duly granted there the Administrator doth almost in all points represent the person of the Intestate as legally as any Executor can the person of his Testator Testamentarily For this Administrator in construction of the Common Law is that person to whose trust care conduct and management the Goods and Chattels Real and Personal of the Intestate are committed by the Ordinary or such other as under him is duly Authorized to grant the same But under this Notion or Appellation of Administrator neither the Civil nor the Canon Law knows any such Officer only they take notice of Administrators as Governours of Persons Places or Things Decret Can. 23. q. 5. cap. 26. Extra Com. cap. 11. And it is most probable that the Common Law might as some conceive take its light as to this Officer under this notion as now practicable with us from the Constitution of the Emperour Leo. I. 28. nulli licere C. de Episc Cler. whereby it is Ordained That the Bishop shall take care to see such Legacies duly performed as are bequeathed for the Redemption of Captives in case the Testator appoint not one to execute his Will in that particular This power given to the Ordinary of making Administrators in case of Intestation and of Authorizing them to act as Executors is very ancient by the Statute-Law And if any Ordinary Chancellor c. having power by the Act of 21 H. 8. to grant the Administration of the goods of him that dieth Intestate to the Widow or next of Kin shall take any Reward for the preferring any person before another to the Administration it is Bribery 11. A lawful Administrator may render his own Goods liable to the Intestates Debts either by a Devastavit or by a False Plea Judicially and his Executor or Administrator shall not succeed him in the Administration to his Intestate unless qualified to require Administration of both Intestates but the Administration of the first Intestates goods is de novo to be committed to his next of Kin as de bonis non Adm. And if a Stranger by any Act make himself Executor de son tort the Creditors and Legataries may not sue him as Administrator albeit it be an Administration in Fact but must sue him as Executor in his own wrong who notwithstanding is not any further liable than to the value of the Deceased's Goods as Assets in his hands But in case the Ordinary shall without granting any Letters of Administration make his Letters Ad Colligendum in that case he makes himself liable to Actions pro tanto as if himself were actually possessed of the Goods of the deceased And here Note That Funeral expences according to the degree and quality of the Deceased are to be allowed of his Goods before any debt or duty whatsoever for that is Opus pium or Charitativum 12. And as in these Consistories there is a great variety of Ecclesiastical Causes heard and determined so also the Officers belonging thereto are many and of various qualities and degrees whereof some seem to be magis principales others minus principales but others in the popular account as meer Animalia tantum Rationalia by whom they understand Apparitors who in truth are Summoners and whose Character in Law is this viz. He is that person whose employment is to serve such Processes as issue out of the Spiritual or Ecclesiastical Courts and as a Messenger to Cite Offenders and others to make their appearance therein as occasion shall require By the Statute of 21 H. 8. c. 5. as also by the 138th Canon of the Ecclesiastical Constitutions Apparitors are called Summoners or Sumners by which Canon the Abuses aud Grievances pretended to be practiced by such Summoners or Apparitors are sufficiently redressed For as the multitude of them is thereby abridged and restrained by Decreeing and Ordaining That no Bishop or Archdeacon or their Vicars or Officials or other inferiour Ordinaries shall depute or have more Apparitors to serve their Jurisdictions respectively than either they or their Predecessors were accustomed to have Thirty years before the publishing the said Ecclesiastical Constitutions So it is likewise provided by the said Canon That the said Apparitors shall by themselves faithfully execute their Offices and not by any colour or pretence whatsoever cause or suffer their Mandats to be executed by any Messengers or Substitutes unless upon some good cause to be first allowed and approved by the Ordinary of the place It is also further Provided by the said Canon That they shall not take upon them the Office of Promoters or Informers for the Court nor shall exact more or greater Fees than are prescribed by the 135th Canon of the said Ecclesiastical Constitutions And in case either the number of Apparitors deputed shall exceed the aforesaid Limitation or any of
Office supposing the Grant of that by the Predecessor does not bind the Successor as it was in Dr. Barker's Case there a Prohibition shall be awarded because the profits are Temporal But we in the first Case cannot try the Sufficiency Vid. 8 E. 3. 70. 9 E. 3. 11. So it is if the Ordinary deprive the Master of a Lay-Hospital for there he is not a Visitor nor is it Visitable by him But otherwise of a Spiritual Hospital 20. The Bishop of Landaff granted the office of his Chancellorship to Dr. Trevor and one Griffin to be exercised by them either joyntly or severally Dr. Trevor for 350 l. released all his Right in the said Office to Griffin so that G. was the sole Officer and then after died After this the Bishop grants the said Chancellorship to R. being a Practicioner in the Civil Law for his life Dr. Trevor surmising that himself was the sole Officer by Survivorship made Dr. Lloyd his Substitute to execute the said office for him and for that that he was disturbed by R. the said Dr. Trevor being Substitute to the Judge of the Arches granted an Inhibition to inhibite the said R. from executing the said Office The Libel contained That one R. hindered and disturbed Dr. Lloyd so that he could not execute the said Office Against these proceedings in the Arches a Prohibition was prayed and day given to Dr. Trevor to shew cause why it should not be granted They urged that the Office was Spiritual for which reason the discussing of the Right thereof appertaineth to the Ecclesiastical Courts But all the Judges agreed That though the Office was Spiritual as to the Exercising thereof yet as to the Right thereof it was Temporal and shall be tryed at the Common Law for the party hath a Freehold therein Vid. 4 5 P. M Dyer 152. 9. Hunt's Case for the Registers Office in the Admiralty and an Assize brought for that And so the Chief Justice said was Adjudged for the Registers Office to the Bishop of Norwich in B. R. between Skinner and Mingey which ought to be tryed at the Common Law And so Blackleech's Case as Warburton said in this Court for the office of Chancellor to the Bishop of Gloucester which was all one with the principal Case And they said That the office of Chancellor is within the Statute of Ed. 6. for buying of Offices c. And so in the manner of Tithing the Prescription is Temporal for which cause it shall be tryed at Common Law And Prohibition was granted according to the first Rule So that if a Bishop grant the office of Chancellorship to A. and B. and after A. release to B. and after B. die and after the Bishop grant it to R. against whom A. sues in the Ecclesiastical Court supposing his Release to be void a Prohibition will lie for that the office is Temporal as to the Right of it though the office be Exercised about Spiritual matters But if a Chancellor be sued in the Ecclesiastical Court to be deprived for Insufficiency as not having knowledge of the Canon Law no Prohibition lies for that they are there the proper Judges of his ability and not the Judges of the Common Law 21. In Dr. Trevor's Case who was Chancellor of a Bishop in Wales it was Resolved That the Offices of Chancellor and Register c. in Ecclesiastical Courts are within the Statute of 5 Ed. 6. cap. 16. which Act being made for avoiding Corruption of Officers c. and advancement of Worthy persons shall be expounded most beneficially to suppress Corruption And because it allows Ecclesiastical Courts to proceed in Blasphemy Heresie Schism c. Loyalty of Matrimonies Probat of Wills c. And that from these proceedings depends not only the Salvation of Souls but also the Legitimation of Issues c. and other things of great consequence It is more reason that such Officers shall be within the Statute than Officers which concern Temporal matters The Temporal Judge committing the Convict only to the Gaoler but the Spiritual Judge by Excommunication Diabolo And there is a Proviso in the Statute for them And it was Resolved That such Offices were within the Purview of the said Statute CHAP. XI Of Courts Ecclesiastical and their Jurisdiction 1. The Antiquity of the Ecclesiastical Laws of England and what the Chief Ecclesiastical Courts are in general anciently called Halimots The Original of the Popes Vsurpation in England 2. The Court of Convocation and Constitutions of Claringdon 3. The High Court of Arches why so called the highest Consistory the Jurisdiction thereof 4. The Judge of this Court whence called Dean of the Arches 5. The great Antiquity of this Court the Number of Advocates and Proctors thereof Anciently limited their decent Order in Court 6. The Prerogative Court of Canterbury 7. The Court of Audience to whom it belonged where kept and what matters it took cognizance of 8. The Court of Faculties why so called what things properly belong to this Court As Dispensations Licenses c. with the Original thereof in England 9 What the nature of a Dispensation is and who qualified to grant it 10. A Dean made Bishop the King may dispence with him to hold the Deanary with the Bishoprick by way of Commendam 11. Whether a Prohibition lies to the Ecclesiastical Courts in case they do not allow of Proof by one Witness 12. Divers Cases at the Common Law relating to Prohibitions to the Ecclesiastical Courts 13. The Court of Delegates 14. The High Commission Court what the Power thereof was 15. The Court of Review or Ad Revidendum 16. The Court of Peculiars 17. In what Cases the Ecclesiastical Court shall have Jurisdiction of matters Subsequent having Jurisdiction of the Original Suit 18. In what Case the party having allowed of the Jurisdiction comes too late to have a Prohibition 19. The difference between a Suit Ad instantiam partis and that ex Officio Judicis in reference to a General Pardon 20. Whether a Cleâ—k may strike his Servant or another in that case the Clerk and be blameless 21. What manner of Avoidance shall be tried at the Common Law and what in the Ecclesiastical Court 22. In what Case a special Prohibition was awarded in a Suit of Tithes after a Definitive Sentence 23. A Prohibition to the Ecclesiastical Court in a Suit grounded on a Custome against Law 24. Prohibition awarded to the Ecclesiastical Court upon refusal there to give a Copy of the Libel 25. Where the Ecclesiastical Court hath cognizance of the Principal they have also of the Accessory though the Accessory of matters Temporal 26. A Prohibition denied upon a Suggestion That the Ecclesiastical Court would not admit of proof by one Witness 27. In what case the Ecclesiastical Court shall have the Cognizance albeit the bounds of a Village in a Parish come in question 28. How the Practice hath been touching Prohibitions where the Subject matter
the Bishoprick of Winchester contra novi Concilii statuta as the same Author reporteth And this because succeeding Popes had broken Pope Vrban's promise Touching the not sending of Legates into England unless the King should require it And in the time of the next succeeding King Stephen the Pope gained Appeals to the Court of Rome For in a Synod at London Conven'd by Hen. Bishop of Winchester the Pope's Legate it was Decreed That Appeals should be made from Provincial Councils to the Pope Before which time Appellationes in usu non erant saith a Monk of that time donec Henricus Winton Episcopus malo suo dum Legatus esset crudeliter intrusit Thus did the Pope usurp Three main points of Jurisdiction upon Three several Kings after the Conquest for of King William Rufus he could win nothing viz. upon the Conquerour the sending of Legates or Commissioners to hear and determine Ecclesiastical Causes Upon Hen. 1. the Donation and Investures of Bishopricks and other Benefices and upon King Stephen the Appeals to the Court of Rome And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power 2. The high Court of Convocation is called the Convocation of the Clergy and is the highest Court Ecclesiastical where the whole Clergy of both Provinces are either present in Person or by their Representatives They commonly meet and sit in Parliament-time consisting of Two parts viz. the Upper-house where the Archbishops and Bishops do sit and the Lower-house where the Inferiour Clergy do sit This Court hath the Legislative power of making Ecclesiastical Laws is commonly called a National Synod Conven'd by the King 's Writ directed to the Archbishop of each Province for summoning all Bishops Deans Archdeacons Cathedrals and Collegiate Churches assigning them the time and place in the said Writ But one Proctor sent for each Cathedral and Collegiate Church and two for the Body of the inferiour Clergy of each Diocess may suffice The higher House of Convocation or the House of Lords Spiritual for the Province of Canterbury consists of 22 Bishops whereof the Archbishop is President the Lower-house or House of Commons Spiritual consisting of all the Deans Archdeacons one Proctor for every Chapter and two for the Clergy of each Diocess in all 166 persons viz. 22 Deans 24 Prebendaries 54 Archdeacons and 44 Clerks representing the Diocesan Clergy Both Houses debate and transact only such matters as his Majesty by Commission alloweth concerning Religion and the Church All the Members of both Houses of Convocation have the same priviledges for themselves and Menial Servants as the Members of Parliament have The Archbishop of York at the same time and in the like manner holds a Convocation of all his Province at York constantly corresponding debating and concluding the same matters with the Provincial Synod of Canterbury The Antiquity of this Court of Convocation is very great for according to Beda St. Augustine An. 686. assembled in Council the Britain Bishops and held a great Synod The Clergy was never assembled or called together at a Convocation by other Authority than by the King 's Writ Vid. Parl. 18 E. 3. nu 1. Inter Leges Inae An. Dom. 727. A Convocation of the Clergy called Magna servorum Dei frequentia The Jurisdiction of the Convocation is only touching matters meerly Spiritual and Ecclesiastical wherein they proceed juxta Legem Divinam Canones Sanctae Ecclesiae The Lord Coke cites some Ancient Records to prove that the Court of Convocation did not meddle with any thing concerning the Kings Temporal Laws of the Land and thence inferrs That the Statute of 25 H. 8. cap. 19. whereby it is provided That no Canons Constitution or Ordinance should be made or put in execution within this Realm by Authority of the Convocation of the Clergy which were contrariant or repugnant to the King's Prerogative Royal or the Customes Laws and Statutes of this Realm is but declaratory of the old Common Law And by the said Act the Court of Convocation as to the making of new Canons is to have the King's License as also his Royal Assent for the putting the same in execution But towards the end of that Act there is an express Proviso that such Canons as were made before that Act which be not contrariant nor repugnant to the King's Prerogative the Laws Statutes or Customes of the Realm should be still used and executed as they were before the making of that Act. And if any Cause shall depend in contention in any Ecclesiastical Court which shall or may touch the King his Heirs or Successors the party grieved shall or may appeal to the Upper-house of Convocation within fifteen days after Sentence given Remarkable are the Constitutions of Claringdon in the time of King H. 2. occasioned by the Popes claiming Exemption of Clerks from the Secular power so contended for by Thomas Becket then Archbishop of Canterbury against the King as occasioned a convening a Common Council as well of the Bishops as of the Nobility at Claringdon in the time of H. 2. wherein they revived and re-established the Ancient Laws and Customes of the Kingdom for the Government of the Clergy and ordering of Causes Ecclesiastical The principal Heads or Articles whereof were these viz. 1 That no Bishop or Clerk should depart the Realm without the King's License and that such as obtained License should give Sureties That they should not procure any dammage to the King or Realm during their absence in Foreign parts 2 That all Bishopricks and Abbies being void should remain in the Kings hands as his own Demesns until he had chosen and appointed a Prelate thereunto and that every such Prelate should do his Homage to the King before he be admitted to the place 3 That Appeals should be made in Causes Ecclesiastical in this manner viz. From the Archdeacon to the Ordinary from the Ordinary to the Metropolitan from him to the King and no farther 4 That Peter-Pence should be paid no more to the Pope but to the King 5 That if any Clerk should commit Felony he should be hanged if Treason he should be drawn and quartered 6 That it should be adjudged High Treason to bring in Bulls of Excommunication whereby the Realm should be cursed 7 That no Decree should be brought from the Pope to be executed in England upon pain of Imprisonment and Confiscation of Goods 3. Arches or alma Curia de Arcubus so called of Bow-Church in London by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise in which Church this Court was ever wont to be held being the chief and most Ancient Court and Consistory of the Jurisdiction of the Archbishop of Canterbury which Parish of Bow together with twelve others in London whereof Bow is the chief are within the Peculiar Jurisdiction of the said Archbishop in Spiritual Causes and
he was employed abroad in Foreign Embassies whereby both these Names or styles became at last in common understanding as it were Synonymâ—us For the Official of this Court and the Dean of the Arches by such Substitution had both the same Juridical Authority though with distinct styles in several persons as appears by that which comes next to the Preface to the Ancient Statutes of that Court ordained by Robert Winchelsey Archbishop of Canterbury in that Stat. touching the Form of the Judges Oath where the words are tam Officalis dictae Curiae quam Decanus de Arcubus suus Commissarius Generalis c. For he that was the Archbishops Official in this Court was heretofore obliged to Constitute the Dean of the Arches as his Commissary General in his absence as also appears by another of those Statutes or Constitutions of that Court Ordained by John Whitgift Archbishop of Canterbury the Title of which Statute is De Decano Ecclesiae Beatae Mariae de Arcubus Lond. wherein we find viz. Statuimus quod Officialis dictae Curiae teneatur Decanum Ecclesiae suum Constituere in ipsius absentia Commissarium Also by the Statutes and Constitutions of this Court made by Matthew Parker Archbishop of Canterbury it is expresly Ordained That neither the Dean or Official of the Court of Arches nor the Auditor of matters and Causes in the Court of Audience of Cant. nor the Judge of the Prerogative Court shall exercise the Function or Profession of an Advocate in any Court belonging to the Jurisdiction of the said Archbishop on pain of Excommunication and Suspension In this Court of the Arches the Proctors thereof do wear such Hoods as Bachelors of Arts use to wear in the Vniversities which Habit or Formality was first enjoyned by Henry Chichley Archbishop of Canterbury in the year 1435. The style of this Court is Alma Curia Cant. de Arcubus Lond. And the Appeal from it doth lie to the King in Chancery 5. This Court of the Arches anciently holden in Bow-Church of London is of very great Antiquity the Lord Coke in the forecited place lets us to understand that he meets with it in a very Ancient Record of a Prohibition In Curia Christianitatis cotam Decano de Arcubus London The Statutes and Ordinances of which Court are very Ancient and to which Those ordained by Robert Winchelsey Archbishop of Canterbury above 380 years since do referr Robertus Winchelse Archiepiscopus Cantuariensis descripsit Judicibus Advocatis Procuratoribus aliisque ministris Almae suae Curiae de Arcubus jura quaedam Statuta quae ipse in Templo Arcuato sedens pro Tribunali legit atque obligavit Quinto Idus Novemb. Anno 1295. William de Sardinia being then his Official and Henry de Nassington Dean of the Arches the said Officials Commissary General By which Statutes it was Ordained That the Advocates belonging to the said Consistory should not exceed the number of Sixteen nor the Proctors above the number of Ten nor should any of them without the special License of the President of that Consistory absent themselves thence by any attendance on any other Consistory at such times wherein Causes were to be heard in the Arches And for the dispatch of the Causes of poor and indigent persons the Judge may by the said Statutes assign them Advocates and Proctors to prosecute for them Gratis Charitative and that nothing be paid for the Process Acts of Court Examinations Sentence or other Court-Fees in such Cases In which Court the Senior Advocates by the same Statutes are to take their places opposite to the Judge the others on each side of him nigher to or remoter from him according to their Seniority the like Order in Court to be observed also by the Proctors And such was the devotion of those days in that Consistory That in order to an imploring of the Divine assistance on their proceedings in Judgment it was further Ordained That Divine Service should be celebrated in Bow-Church immediately before the first and after the last Cession of every Term the Judge Advocates Proctors and other Officers of the Court to be present thereat 6. The Prerogative Court of the Archbishop of Canterbury is that Court wherein all Testaments are proved and Administrations granted of the Goods and Chattels of such persons as dying within his Province had at the time of their death Bona Notabilia in some other Diocess than that wherein they dyed which Bona Notabilia regularly must amount to the value of Five pounds save in the Diocess of London where it is Ten pounds by Composition The Probat of every Bishops Testament and the granting of the Administration of his Goods and Chattels albeit he hath not Goods but within his own Jurisdiction doth belong to the Archbishop The like Court hath the Archbishop of York From this Court lies the Appeal to the King in Chancery If one make two Executors one of seventeen years of Age and the other under Administration during the Minority is void because he of seventeen years old may execute the Will if Administration during the Minority in such case be granted And if the Administrator brings his Action the Executor may well release the Debt One was cited to appear in the Prerogative Court of Canterbury which lived out of the Diocess of Canterbury and upon that he prayed Prohibition upon the Statute of 23 H. 8. c. 9. which willeth that none shall be cited to appear out of his Diocess without assent of the Bishop and Prohibition was granted And yet it was said that in the time of H. 8. and Q. Ma. that the Archbishop of Canterbury had used to cite any man dwelling out of his Diocess and within any Diocess within his Province to appear before him in the Prerogative-Court and this without the assent of the Ordinary of the Diocess But it was Resolved by the Court that this was by force of the power Legatine of the Archbishop that as Lindwood saith ought to be expressed in the Prohibition for the Archbishop of Canterbury York Pisa and Reymes were Legati nati and others but Legati à latere The Lord Coke in his Institutes par 3. cap. 69. gives us the Resolutions upon the Statute of 21 H. 8. cap. 5. That if a man makes his Testament in paper and dieth possessed of Goods and Chattels above the value of 40 l. and the Executor causeth the Testament to be transcribed in parchment and bringeth both to the Ordinary c. to be proved It is at the Election of the Ordinary whether he will put the Seal and Probat to the Original in paper or the Transcript in parchment but whether he put them to the one or to the other there can be taken of the Executor c. in the whole but 5 s. and not above viz. 2 s. 6 d. to the Ordinary c. and his Ministers and 2
And the Judgment of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose where it is recited that the Bishop of Rome had deceived and abused the Subjects of the Crown of England pretendig and perswading them That he had full power to Dispence with all human Laws Vses and Customes of all Realms in all Causes which be called Spiritual which matter hath been usurped and practised by him and his Predecessors for many years to the great derogation of the Imperial Crown of England For whereas the said Realm of England recognizing no Superiour under God but the King hath been and yet is free from subjection to any mans Laws but only to such as have been devised made and Ordained within this Realm for the weal of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty and by their own consent to be used among them and have bound themselves by long use and custome to the observance of the same not as to the observance of the Laws of any Foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally established as Laws of the same by the said sufferance consent and custome and not otherwise it standeth with natural equity and good reason that all such human Laws made within this Realm or induced into this Realm by the said Sufferance Consent and Custome should be Dispenced with abrogated amplified or diminished by the King and his Parliament or by such persons as the King and Parliament should authorize c. Vid. 21 H. 7. 4. a. where it is said That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded that the King of England and not the Pope before the making of the said Statute of Faculties might de jure Dispence with the Ecclesiastical Law in that and other cases For although many of our Ecclesiastical Laws were first devised in the Court of Rome yet they being established and confirmed in this Realm by acceptance and usage are now become English Laws and shall no more be reputed Roman Canons or Constitutions As Rebuffus speaking De Regula Cancellariae Romanae de verisimili notitia Haec Regula says he ubique in Regno Franciae est recepta est Lex Regni effecta observatur tanquam Lex Regni non tanquam Papae Regula Papa eam revocare non potest The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical For whereas the Law of the Church is That every Spiritual person is Visitable by the Ordinary King William the Conqueror by his Charter Dispenced with the exempted the Abbey of Battell from the Visitation and Jurisdiction of the Ordinary in these express words Sitque dicta Ecclesia libera quieta in perpetuum ab omni subjectione Episcoporum quarumlibet personarum dominatione sicut Ecclesia Christi Cantuariensis c. whereby he Dispences with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis Ecclesiasticae Edit 1534. where that whole Charter is recited at large The like Charter was granted to the Abbey of Abingdon by King Kenulphus 1 H. 7. 23 25. and Cawdry's Case Co. par 5. fo 10. a. So likewise every Appropriation doth comprize in it a Dispensation to the Parson Imparsonee to have and retain the Benefice in perpetuity as appears in Grendon's Case Plow Com. 503. In which Act the King by the Common Law shall be always Actor not only as Supream Patron but also as Supream Ordinary as is also observed in Grendon's Case For the King alone without the Pope may make Appropriations 7 E. 3. Fitz. Quare Impedit 19. And in the Case of Malum prohibitum and Malum in se in 11 H. 7. 12. a. it is held That the King may dispence with a Priest to hold Two Benefices and with a Bastard that he may be a Priest notwithstanding the Ecclesiastical Laws which are to the contrary And as he may dispence with those Laws so he may pardon all Offences contrary to these Laws and his Pardon is a barr to all Suits pro salute Animae or reformatione morum and all Suits ex Officio in the Ecclesiastical Court Hall's Case Coke 5. par fo 51. In all Faculties or Dispensations for the holding of Two Benefices granted at the Court of Rome there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons and of the right of the King by name express where the Patronage belonged to him otherwise the Faculty was void For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature And if such a particular Non obstante were not added in the Faculty then there was inserted another Clause viz. Dummodo Patronorum expressus accedat Consensus also by another Clause Authority was always given to the Official or Archdeacon or other Ecclesiastical Minister to put him to whom the Faculty is granted into possession of the Benefice cum acciderit And because by the Canon Law the Patron 's consent was ever requisite in a Commenda for that reason in every Faculty or License granted by the Pope to make a Permutation Union or Appropriation of Churches these words were ever added viz. Vocatis quorum interest which chiefly intends the Patron And which Union and Approbation shall not according to the Common Law be made without the Patron 's assent Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Case Plow Com. 498. a. A Faculty or Dispensation is of such force that if a Clerk be presented to a Benefice with Cure and be Admitted Instituted and Inducted into the same so that the Church is full of him if afterwards he be presented to another Benefice Incompatible or elected to a Bishoprick and before he is Instituted to the second Benefice or be created Bishop he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo that is for his life that Faculty or Dispensation shall be of such effect that the former Benefice shall not be void by acceptance of the Second or by promotion to the Bishoprick but he shall remain full and perfect Incumbent of the first Benefice during his life In the time of H. 6. when Henry Beaufort Great Uncle to the King being Bishop of Winchester was made a Cardinal and after that purchased from the Pope a Bull Declaratory that notwithstanding he were made Cardinal yet his Bishoprick of Winchester should not be void but that he might retain the same as before yet it was held That the See of Winchester was void by assuming the Cardinalship which
de facto and by Usurpotion did use to Dispence and by the Stat. of 25 H. 8. cap. 21. the power is taken from the Pope and conferr'd Cumulative on the King And by the Stat. of 25 H. 8. the Archbishop of Canterbury may Dispence in divers cases but that doth not exclude the power of the King 10. In the same Case it was held per Curiam una voce That where a Dean is made a Bishop with a Dispensation from the King to hold the Deanary notwithstanding the Bishoprick such Dispensation continues him Dean as before by force and virtue of his former Title to all intents and purposes so as that he may confirm or make Leases or do any other Act as a Dean as if he had not been made a Bishop at all For before the Cano nor Constitution made at the Council of Laterall for the voidance of the first Benefice by taking another Benefice or Promotion it was lawful and not forbidden so to do and the nature of the Dispensation is to exempt him from the penalty and so it remains as if the Canon had never been made which appears by 11 H. 4. in the Case of the Bishop of St. Davids That such a person that had such a Dispensation being Defendant in a Quare Impedit counterpleaded the Title of the Plaintiff which he could not do by the Statute of 25 Ed. 3. unless he had been the Possessor thereof and he in possession by 4 H. 8. Dyer 1. is one who is and continues Incumbent by Institution and Induction Therefore in this case the first Title and Induction continues And in the same Case it was also agreed That such Dispensation is not any Provision for no new thing is done but the ancient Title continues And in Fitz. N. B. Brief Spoliation such a person may maintain a Spoliation and none can maintain that unless he continue his Institution and Induction Parkhur's Case 6 7 Eliz. Such a Commendam continues to the person be it that the Benefice be void by Resignation And 21 Jac. in a Quare Impedit in C. B. by Woodley against the Bishop of Exeter and Manwayring it was so Resolved and Adjudged and the words of that Dispensation are sufficient for it is to retain it during his life in Commendam aut modo quocunque de jure magis efficaci and all the profits thereto belonging ac caetera facere perimplâ—re quae ad Deconatum pertinent in tam amplis modo forma as if he had not been promoted to be a Bishop with a Non obstante to all Canons c. And so they all concluded That the Dispensation continues him Dean enabling him to Confirm Leases made by the Bishop 11. W. Libels for a Legacy in the Ecclesiastical Court against B. who moves for a Prohibition because he had there pleaded Plene Administravit and proved that by one Witness and they would not allow it Richardson before the Statute of Ed. 6. the proper Suit for Tithes was there and if they allow not one Witness to prove payment a Prohibition shall be granted And he put Morris and Eaton's Case in the Bishop of Winchester's Case where it was Ruled if the Ecclesiastical Court will not allow that Plea which is good in our Law a Prohibition shall be granted as in the Case of Tithes And he said the Case of a Legacy is all one Crook When one comes to discharge a thing by due matter of Law and proves it by one Witness if it be not allowed no Prohibition shall be granted there Richardson Our Case is proof of Plene Administravit pleaded which goes in discharge But if there be enough pleaded which goes in discharge and proves that by one Witness and not allowed a Prohibition shall be granted Hutton said That properly for a Legacy the Suit is in the Ecclesiastical Court although they may sue in the Chancery for it yet the proper Court is the Ecclesiastical Court And they said that they used to allow one Witness with other good Circumstantial proofs if they be not in some Criminal causes where of necessity there must be two Witnesses In one Hawkin's Case Farmor of an Appropriation Libels for Tithes of Lambs for seven years And there payment was proved by one Witness and a Prohibition was granted for Non-allowance Yelverton There may be a difference where the Suit is meerly Ecclesiastical for a Sum of Money as for a Legacy there the payment of the Legacy is of the nature of the thing and the Ecclesiastical Court shall have Jurisdiction of the proof and matter But if one gives a Legacy of twenty Oxen and the other pleads payment of as much money in satisfaction there they cannot proceed but at Common Law for that that the Legacy is altered And if a proof of one Witness is not accepted a Prohibition shall be granted for now it is a Legal Trial 35 H. 6. If the Principal be proper for their Court the Accessory is of the same nature Also the Suit is commenced for a Legacy and the other pleads Plene Administr there they proceed upon the Common Law For they sometimes take that for Assets which our Law does not take It was adjudged in the Kings-Bench That where a Proof by one Witness of a Release of a Legacy is disallowed a Prohibition shall be granted Crook In this Case a Proof of setting out of Tithes by one Witness disallowed a Prohibition shall be granted 12. One was obliged in the Ecclesiastical Court not to accompany with such a Woman unless to Church or to a Market overt And afterwards he was summoned to the Ecclesiastical Court to say whether he had broken his Obligation or not And Ayliffe moved for a Prohibition which was granted for that that the Forfeiture is a Temporal thing And it does not become them in the Ecclesiastical Court to draw a man in Examination for breaking of Obligations or for Offences against Statutes C. Administrator durante Minori aetate of his Brothers Son the Son died and made the Wife of H. his Executrix who called C. to account in the Ecclesiastical Court for the Goods And he pleads an Agreement between him and H. and that he gave 80 l. in satisfaction of all Accounts But they did not accept the Plea for that a Prohibition was prayed to be granted Richardson If the party received the money in satisfaction then there shall not be a Prohibition granted but if there were only an Agreement without payment of money then otherwise Crook It is a Spiritual matter and they have Jurisdiction to determine of all things concerning that But the Agreement prevents that it cannot come into the Ecclesiastical Court G. Libels against B. before the High Commissioners for an Assault made upon him being a Spiritual person And Attbowe prayed a Prohibition for that although their Commission by express words gives them power in that case yet that Commission is granted upon the Statute of
that upon such Appeal a Commission under the Great Seal shall be directed to certain persons particularly designed for that business so that from the highest Court of the Archbishop of Canterbury there lies an Appeal to this Court of Delegates Of this Subject of Appeals the Lord Coke says That an Appeal is a Natural defence which cannot be taken away by any Prince or power and in every Case generally when Sentence is given and Appeal made to the Superiour the Judge that did give the Sentence is obliged to obey the Appeal and proceed no further until the Superiour hath examined and determined the cause of Appeal Nevertheless where this Clause Appellatione remota is in the Commission the Judge that gave Sentence is not bound to obey the Appeal but may execute his Sentence and proceed further until the Appeal be received by the Superiour and an Inhibition be sent unto him For that Clause Appellatione remota hath Three notable effects 1 That the Jurisdiction of the Judge à quo is not by the Appeal suspended or stopped for he may proceed the same notwithstanding 2 That for proceeding to Execution or further process he is not punishable 3 That these things that are done by the said Judge after such Appeal cannot be said void for they cannot be reversed per viam Nullitatis But if the Appeal be just and lawful the Superiour Judge ought of right and equity to receive and admit the same and in that case he ought to reverse and revoke all mean Acts done after the said Appeal in prejudice of the Appellant At the Parliament held at Clarendon An. 10 H. 2. cap. 8. the Forms of Appeals in Causes Ecclesiastical are set down within the Realm and none to be made out of the Realm Ne quis appellat ad dominum Papam c. so that the first Article of the Statute of 25 H. 8. concerning the prohibiting of Appeals to Rome is declaratory of the ancient Law of the Realm And it is to be observed says the Lord Coke that the first attempt of any Appeal to the See of Rome out of England was by Anselme Archbishop of Canterbury in the Reign of William Rufus and yet it took no effect Touching the power and Jurisdiction of the Court of Delegates Vid. le Case Stevenson versus Wood. Trin. 10 Jac. B. R. Rot. 1491. in Bulstr Rep. par 2. wherein these Three points are specially argued 1 Whether the Judges Delegates may grant Letters of Administration 2 Whether in their person the King be represented 3 Whether the Court of Delegates may pronounce Sentence of Excommunication or not 14. The High commission-Commission-Court in Causes Ecclesiastical was by Letters Patents and that by force and virtue of the Statute of 1 Eliz. cap. 1. the Title whereof is An Act restoring to the Crown the Ancient Jurisdiction Ecclesiastical c. the High Commissioners might if they were competent that is if they were Spiritual persons proceed to Sentence of Excommunication What the power of this Court was and whether they might in Causes Ecclesiastical proceed to Fine and Imprisonment is at large examined by the Lord Coke in the Fourth part of his Institutes where he reports the Judgment and Resolutions of the whole Court of Common Pleas thereon Pasch 9 Jac. Reg. upon frequent Conferences and mature deliberation set down in writing by the order and command of King James Likewise whom and in what Cases the Ecclesiastical Courts may examine one upon Oath or not there being a penal Law in the Case and whether the saying Quod nemo tenetur seipsum prodere be applicable thereunto Vid. Trin. 13 Jac. B. R. Burroughs Cox c. against the High Commissioners Bulstr par 3. 15. The Statutes of 24 H. 8. and 25 H. 8. do Ordain That upon certain Appeals the Sentence given shall be definitive as to any further Appeal notwithstanding which the King as Supream Governour may after such definitive Sentence grant a Commission of Review or Ad Revidendum c. Sir Ed. Coke gives two Reasons thereof 1 Because it is not restrained by the Statute 2 For that after a definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commision Ad Revidendum and what Authority the Pope here exercised claiming as Supream Head doth of right belong to the Crown and by the Statutes of 26 H. 8. cap. 1. and 1 Eliz. cap. 1. is annexed to the same Which accordingly was Resolved Trin. 39 Eliz. B. R. Hollingworth's Case In which Case Presidents to this purpose were cited in Michelot's Case 29 Eliz. in Goodman's Case and in Huet's Case 29 Eliz. Also vid. Stat. 8 Eliz. cap. 5. In the Case between Halliwell and Jervoice where a Parson sued before the Ordinary for Tithes and thence he appeals to the Audience where the Sentence is affirmed then the party appeals to the Delegates and there both Sentences are Repealed It was agreed That in such case a Commission Ad Revidendum the Sentences may issue forth but then such a Reviewing shall be final without further Appeal But if the Commissioners do not proceed to the Examination according to the Common Law they shall be restrained by a Prohibition 16. The Court of Peculiars is that which dealeth in certain Parishes lying in several Diocesses which Parishes are exempt from the Jurisdiction of the Bishops of those Diocesses and are peculiarly belonging to the Archbishop of Canterbury Within whose Province there are fifty seven such Peculiars for there are certain peculiar Jurisdictions belonging to some certain Parishes the Inhabitants whereof are exempt sometimes from the Archdeacons and sometimes from the Bishops Jurisdiction 17. If a Suit be in the Ecclesiastical Court for a Modus Decimandi if the Desendant plead payment it shall be tryed there and no Prohibition may be granted for that the Original Suit was there well commenced So if payment be pleaded in a Suit depending in the Ecclesiastical Court for any thing whereof they have the original cognizance But if a man sue for Tithes in the Ecclesiastical Court against J. S. and makes Title to them by a Lease made to him by the Parson and J. S. there also makes Title to them by a former Lease made to him by the same Parson so that the Question there is which of the said Leases shall be preferred In this case a Prohibition shall be granted for they shall not try which of the said Leases shall be preferr'd although they have cognizance of the Original for the Leases are Temporal If a man having a Parsonage Impropriate make a Lease for years of part of the Tithes by Deed and the Deed be denied in the Ecclesiastical Court and Issue taken thereon a Prohibition shall be granted If a Parson compound with his Parishioner for his Tithes and by his Deed grant them to him for a certain Sum for one year according to Agreement and after he
because he did not find them meat and drink they sued him in the Ecclesiastical Court and a Prohibition was awarded because the Custome was a custome against the Law 24. In Babington's Case it was Resolved That if one be sued in the Ecclesiastical Court ex Officio or by Libel and he demand the Copy of the Libel which is denied That a Prohibition lieth in such case Vid. Stat. 2 H. 4. 25. In a Prohibition upon a Libel in the Ecclesiastical Court where the Suit was for Tithe-Apples in discharge of which he there pleaded an Award which was That he was to pay so much for the Tithe pleads there the Arbitrement the which plea they refused supposing this to be void upon this a Prohibition prayed Coke We will not grant a Prohibition in this case So in a Suit there for a Legacy if payment of the same be there pleaded which is not sufficient the payment is Triable there by 1 R. 3. fol. 4. When the Original begins in the Ecclesiastical Court although that afterwards a matter happens in Issue which is Triable at the Common Law yet this shall be tried there by the Ecclesiastical Law As if one do sue there for a Horse to him devised the Defendant there pleads that the Devisor did give this Horse unto him in his life time This is Triable by our Law yet this shall be tried there by their Law In the same manner it is where the Original doth begin here the same shall be tried here by our Law as in a Quare Impedit able or not able if it were otherwise they should there try nothing This is belonging to them But if they will there draw the matter ad aliud examen as upon proof of a Deed they judge otherwise than we do As in case of a Lease for years to be made they hold the same to be Traditione or void And so a Grant of Goods to be delivered or not good If they will judge in Common Law-matters otherwise than we do there in such case a Prohibition lies That which we call Orders they amongst them do call Acts The Court all clear of Opinion That this plea of the Award there pleaded and by them refused no ground for a Prohibition and so by the Rule of the Court a Prohibition was denied And in Dicke's Case against Browne a Prohibition was denied and a Consultation granted because the Ecclesiastical Court as was then admitted having cognizance of the Principal hath cause also there to determine of the Accessory 26. If a Parson sue upon the Stat. of 2 Ed. 6. in the Ecclesiastical Court for the double value for not setting forth the Tithes and the Defendant surmize That he did set them forth and that they would not there allow or admit the proof thereof by one Witness no Prohibition lies for that because they have the cognizance of the matter In this case the Prohibition was denied per Curiam 27. If the Bounds of a Village in a Parish come in question in the Ecclesiastical Court in a Suit between the Parson Impropriate and the Vicar of the same Parish as if the Vicar claim all the Tithes within the Village of D. within the Parish and the Parson all the Tithes in the residue of the Parish and the question between them is Whether certain Lands whereof the Vicar claims the Tithe be within the Village of D. or not yet inasmuch as it is between Spiritual persons viz. between the Parson and the Vicar although the Parson be a Lay-man and the Parsonage appropriate a Lay-see yet it shall be tried in the Ecclesiastical Court and no Prohibition be granted And in this case the Prohibition was denied 28. Where Suit hath been in the Ecclesiastical Court for something Spiritual mixt with other matter Triable at Common Law In such case a Prohibition hath been granted as to the matter Triable by the Common Law and not as to the rest if they may be severed As if a Suit be in the Ecclesiastical Court to avoid the Institution of one is Instituted to A. his Chappel of Ease as he pretends if the other suggest That A. is a Parochial Church of it self a Prohibition lies as to a Trial whether it be a Parochial Church of it self or not for that they shall not try the Bounds of the Parish but not as to a Trial concerning the Institution for that belongs to the Ecclesiastical Court to examine whether it be well done or not But Houghton said they cannot well try the Institution without trying the Bounds of the Parish If a Testament be made of Lands and Goods and there be a Suit in the Ecclesiastical Court for the Goods and the question be whether the Testator did revoke his Will in his life time or not a Prohibition lies as to the Land and not as to the Goods So if a man sues for the Probat of a Testament in the Ecclesiastical Court and in the Testament there be Lands devised and other personal Goods a Prohibition lies as to the Land but not as to the rest Upon an Allegation in such case That the Devisor revoked his Will before his death a Prohibition was granted as to the Land 29. If a man be sued out of his Diocess and there Answers without taking Exception thereunto and afterwards Sentence be given against him he shall not after have a Prohibition for that he did not take Exception to the Jurisdiction before but affirmed the Jurisdiction In this case Prohibition hath been denied If it appears in the Libel that the Court hath not Jurisdiction of the cause a Prohibition lies after Sentence but otherwise it is if it doth not so appear in the Libel but by averment Generally if a Suit be in the Ecclesiastical Court and Sentence there given for the Plaintiff and thereupon the Defendant Appeals and after pray a Prohibition no Prohibition is to be granted although if he had come before Sentence it ought to have been granted for that it is inconvenient after so much Expence and no Exception taken to the Jurisdiction then to grant a Prohibition Where a man by intendment shall have remedy by Appeal no Prohibition lies And therefore if a man devise a Legacy to B. to be paid him within one year after his death Provided that if he die within the year that then the Legacy shall be void and shall be divided between D. and E. and after B. die within the year and his Executor sue for the Legacy and Sentence given for him for that they there held the Condition to be void yet no Prohibition lies for that by intendment he hath his remedy by Appeal and in this case a Prohibition was denied If a man hath a Prohibition on a Libel for Tithes of Faggots on a Suggestion that the Faggots were made of great Trees above twenty years growth and in the Suggestion the quantity of
Faggots be mistaken yet if it appears that he made his Suggestion according to the Copy of the Libel given him by his Proctor no Consultation shall be brought for by the Statute of 2 H. 5. he ought to have a true Copy of the Libel 30. The Case was where A. sued B. for Tithes within the Parish of C. B. said they were within the Parish of D. and the Parson of D. came pro interesse suo and they proceed there to Sentence Question if in such a Parish or such a Parish shall be tried by the Law of the Land or of the Church Wray said It was Triable by the Common Law Fenner said the Pope hath not distinguished of Parishes but Ordained that Tithes shall be paid within the Parish 31. K. â—arson of S. sued C. in the Spiritual Court for Tithes of certain Lands in the Parish of S. D. Plaintiff in the Prohibition came pro interesse suo and said there was a Custome within the Parish of S. that the Parson of H. shall have Tithes 13 Cheeses of the Lands in S. and in recompence thereof the Parson of S. had 13 Cheeses for the Tithes of H. It was said the Right of Tithes were in question and not the Bounds of the Parish and therefore no Prohibition and of that Opinion was the Court and a Consultation awarded 32. If an Administration be granted to A. where it ought not to be granted to him and after the Administration be Repealed and granted to B. for that he is the next of Kin In this case B. may sue A. in the Ecclesiastical Court to Account for the profits of the Goods and Chattels of the Deceased during his time and no Prohibition to be granted for B. cannot have an Action of Trespass against A. nor hath he any remedy for them at the Common Law 33. A Parson may sue in the Ecclesiastical Court for a Modus Decimandi and no Prohibition shall be granted for it is in the nature of Tithes But a Prescription cannot be tried in the Ecclesiastical Court for that it ought to be tried by a Jury which cannot be there Yet if a Parson Prescribe to have Tithes of things not Tithable as of Rents of Houses he may sue for that in the Ecclesiastical Court and no Prohibition lies yet no Tithes de jure ought to be paid of them So he may sue in the Ecclesiastical Court for the Tithes of great Trees which he claims by Prescription and no Prohibition lies yet de jure they are not Tithable Quaere 9 H. 6. 46. 34. If there be a Custome that after the Grass is cut and set into Grass-cocks the Tenth Cock be assigned to the Parson and that by the Custome it shall be lawful for him to make the same into Hay upon the Land and the Owner of the Land disturb him from making the same he may sue for that in the Ecclesiastical Court and no Prohibition shall be granted for that is incident to the Custome to come there to make the same into Hay Also the proper place to sue for a Legacy is the Ecclesiastical Court for that it is not any Debt but only due by the Will If A. do owe to B. five Marks and he Devise by his Will that whereas he doth owe five Marks to B. his Executor shall make it 10 l. The Suit for that 10 l. may be in the Ecclesiastical Court for that is not any Addition to the five Marks but a new Sum given in satisfaction of the five Marks and so no part of the 10 l. any Debt but only a Legacy Also if a man devise a Rent out of his Stock and House which he hath for years the Devisee may sue for that Rent in the Ecclesiastical Court for that it issues out of a Chattel and no remedy for it at the Common Law If a man possessed of a Lease for years Devise that his Executor shall out of the profits thereof pay 20 l. to each of his Daughters at their full Age the Executor may be sued in the Ecclesiastical Court to put in Sureties to pay the Legacies and no Prohibition shall be granted for that is to issue out of a Chattel 35. If there be a Question between two persons touching several Grants which of them shall be Register of the Bishop's Court that shall not be tried in the Bishop's Court but at Common Law for although the Subjectum circa quod be Spiritual yet the Office it self is Temporal Also if a man set forth his Tithes by severance of Nine parts from the Tenth and after carry away the Tenth part the Parson cannot sue for that in the Ecclesiastical Court for that by the severance of the Nine parts it did become a Chattel for which he might have his Action of Trespass 36. It is Reported That if a Suit be in the Ecclesiastical Court against a Woman for exercising the Trade of a Midwife without License of the Ordinary contrary to the Canons a Prohibition lies for that is not any Spiritual Function whereof they have cognizance And in this case Prohibition was granted to the Court of Audience 37. The Ecclesiastical Court may not try the Bounds of a Parish and therefore if Suit be there on that matter a Prohibition lies So if the Question there be whether such a Church be a Parochial Church or but a Chappel of Ease a Prohibition also lies In the Case between Elie vicar of Alderburne in the Country of Wilts and Cooke Prohibition was granted and thereupon Issue joyned whether several Parishes and tried by Verdict to be one Parish 38. Where a man sued for a Legacy in the Ecclesiastical Court against an Executor and he there pleaded that he had not Assets save only to pay the Debts and the said Court disallow'd of that plea a Prohibition was granted 39. If a man sues in the Ecclesiastical Court to have an Account for the profits of a Benefice a Prohibition lies for that it belongs to the Common Law But if the Suit be for the profits taken during the time of Sequestration no Prohibition lies 40. In Worts and Clyston's Case where the Plaintiff sued for Tithes in the Ecclesiastical Court by virtue of a Lease made by the Vicar of T. for three years The Defendant prayed to be discharged of Tithes by a former Lease The Plaintiff in the Ecclesiastical Court prayed a Prohibition to stay his own Suit there It was granted by the Court because they are not to meddle with the trial of Leases or real Contracts there although they have Jurisdiction of the Original cause viz. the Tithes 41. In Collier's Case upon the endowment of a Vicarage upon an Appropriation it was Ordained by the Bishop That the Vicar should pay yearly 20 l. to the Precentor in the Cathedral Church of S. to the use of the Vicars Chorals of the said Church It was held
Bishop of Rome had assumed or tooken upon him to be the Spiritual Prince or Monarch of all the World he attempted also to give Laws to all Nations as one real Mark or Signal of his Monarchy but they well knowing Quod ubi non est condendi authoritas ibi non est parendi necessitas did not impose their Laws at first peremptorily on all Nations without distinction but offered them timide precario And therefore he caused certain Rules in the first place to be collected for the Government of the Clergy only which he called Decreta and not Leges vel Statuta These Decrees were published in An. 1150. which was during the Reign of King Stephen And therefore what the Lord Coke observes in the Preface to the Eighth part of his Reports Quod Rogerus Bacon frater ille perquam Eruditus in Libro De impedimentis Sapientiae dicit Rex quidem Stephanus allatis Legibus Italiae in Angliam Publico Edicto prohibuit ne in aliquo detinerentur may probably be conjectured to be meant and intended of those Decrees which were then newly compiled and published Yet these Decrees being received and observed by the Clergy of the Western Churches only for the Eastern Church never received any of these Rules or Canons Kelw. Rep. 7 H. 8. fo 184 the Bishop of Rome attempted also to draw the Laity by degrees into obedience to these Ordinances and to that purpose in the first place he propounds certain Rules or Ordinances for Abstinence or days of Fasting to be observed as well by the Laity as the Clergy which were upon the first Institution thereof called by the mild and gentle name of Regationes as Marsilius Pat. lib. Defensor Pacis par 2. cap. 23. hath observed and thence it seems the Week of Abstinence a little before the Feast of Pentecost was called the Rogation-week that time of Abstinence being appointed at the beginning by that Ordinance which was called Rogatio and not Praeceptum vel Statutum Now when the Laity out of their devotion had received and obeyed these Ordinances of Abstinence then the Bishop of Rome proceeds further De una praesumptione ad aliam transivit Romanus Pontifex as Marsil Pat. there says and made many Rescripts and Orders per Nomen Decretalium which were published in the year 1230. which was in the Fourteenth year of King H. 3. or thereabout Vid. Matth. Par. Hist mag 403. and these were made to bind all the Laity and Sovereign Princes as well as their Subjects in such things as concerned their Civil and Temporal Estates As that no Lay-man should have the Donation of an Ecclesiastical Benefice That no Lay-man should marry within certain Degrees out of the degrees limited by the Levitical Law That all Infants born before Marriage should be adjudged after Marriage Legitimate and capable of Temporal Inheritance That all Clerks should be exempt from the Secular power and others of the like nature But these Decretals being published they were not entirely and absolutely received and obeyed in any part of Christendom but only in the Pope's Temporal Territory which by the Canonists is called Patria obedientiae But on the other hand many of those Canons were utterly rejected and disobeyed in France and England and other Christian Realms which are called Patriae Consuetudinariae As the Canon which prohibited the Donation of Benefices per manum Laicam was ever disobeyed in England France the Kingdom of Naples and divers other Countries and Common-wealths And the Canon to make Infants Legitimate that were born before Marriage was specially rejected in England when in the Parliament held at Merton omnes Comites Barones una voce responderunt Nolumus Leges Angliae mutari quae hucusque usitatae sunt c. And the Canon which exempts Clerks from the Secular power was never fully observed in any part of Christendom Kelw. 7 H. 8. 181. b. which is one infallible Argument That these Ordinances had not their force by any Authority that the Court of Rome had to impose Laws on all Nations without their consent but by the approbation of the people which received and used them For by the same reason whereby they might reject one Canon they might reject all the other Vid. Bodin lib. 1. de Rep. cap. 8. where he saith That the Kings of France on the erection of all Universities there have declared in their Charters that they would receive the Profession of the Civil and Canons to use them at their discretion and not to be obliged by these Laws But as to those Canons which have been received accepted and used in any Christian Realm or Common-wealth they by such acceptation and usage have obtained the force of Laws in such particular Realm or State and are become part of the Ecclesiastical Laws of that Nation And so those which have been embraced allowed and used in England are made by such allowance and usage part of the Ecclesiastical Laws of England By which the interpretation dispensation or execution of these Canons being become Laws of England doth appertain sole to the King of England and his Magistrates within his Dominions and he and his Magistrates have the sole Jurisdiction in such cases and the Bishop of Rome hath nothing to do in the interpretation dispensation or execution of those Laws in England although they were first devised in the Court of Rome No more than the Chief Magistrate of Athens or Lacedemon might claim Jurisdiction in the Ancient City of Rome for that the Laws of the XII Tables were thither carried and imported from those Cities of Greece and no more than the Master of New-Colledge in Oxford shall have Command or Jurisdiction in Kings-Colledge of Cambridge for that the private Statutes whereby Kings-Colledge is governed were for the most part borrowed and taken out of the Foundation-Book of New-Colledge in Oxford And by the same reason the Emperour may claim Jurisdiction in Maritime causes within the Dominions of the King of England for that we have now for a long time received and admitted the Imperial Law for the determination of such Causes Vid. Cawdries Case Co. par 5. and Kelw. Rep. 184. a. Now when the Bishop of Rome perceived that many of his Canons were received and used by divers Nations of Christendom he under colour thereof claimed to have Ecclesiastical Jurisdiction in every Realm and State where these Canons were received and sent his Legates with several Commissions into divers Kingdoms to hear and determine Causes according to these Canons which Canons although neither the Pope nor his Ministers at the first venting and uttering thereof dared to call Laws Ne committerent crimen Laesae Majestatis in Principes as Marâ—il Pat. lib. Defensor pacis par 2. cap. 23. observes who also says That these Canons being made by the Pope Neque sunt humanae Leges neque divinae sed documenta quaedam Narrationes yet when he perceived that these Canons were received allowed
And it was said That the Excommunication was only for his Contempt And it is lawful for the Bishop to grant such an Inhibition for the peace of the Church And Doderidge agreed That if the Bishop did Inhibit any from making a disturbance in the Church it was good and therefore would not grant a Prohibition for well-doing Crew Jones c. but here he had not done well Doderidge è contra Then it was said That here the Bishop had Inhibited till the matter were determined before himself And the whole Court agreed That a Seat in a Church claimed by Prescription and the priority therein likewise claimed by Prescription is Triable in this Court by an Action upon the Case and not in the Spiritual Court And at last it was agreed by the parties that H. should remain in possession till the matter were tried by Prohibition And a Prohibition was awarded in the Case Note That a Prohibition may not be granted after a Consultation And as it seems by the course of Proceedings in the Court of the King's Bench a Prohibition shall not be granted the last day of a Term and such a Motion ought not then to be made but upon a motion there may be a Rule to stay proceedings till the next Term 19. It was moved in the King's Bench for a Prohibition to the Ecclesiastical Court at Worcester and shewed for cause 1 That the Suit there was for Money which by the assent of the greater part of the Parishioners of D. was Assessed upon the Plaintiff for the Reparation viz. for the Re-casting of their Bells The truth is That the charge was for the making of new Bells where there were Four before whereby it appears that it is meerly matter of curiosity and not of necessity for which the Parishioners shall not be liable to such Taxations and herein it was relied upon 44 E. 3. 19. by Finchden 2 The party there is overcharged of which the Common Law shall judge 3 The party hath alledged that he and all those who have an Estate in such a Tenement have used to pay but Eleven shillings for any Reparation of the Church But the Prohibition was denied and by Doderidge in the Book of 44 E. 3. there was a By-law in the Case to distrain which is a thing meerly Temporal for which the Prohibition was granted per Curiam in this case the Assessment by the major part of the Parishioners binds the party albeit he assented not to it And the Court seemed to be of opinion That the Custome was not reasonable because it laid a burden upon the rest of the Parish Littleton of Counsel of the other side Suppose the Church falls shall he pay but Eleven shillings Whitlock If the Church falls the Parishioners are not bound to build it up again which was not denied by Justice Jones 20. Roberts and others of East-Greenwich were cited in the Ecclesiastical Court to pay money that the Church-wardens had expended in Reparation of the Church and the Inhabitants alledged That the Tax was made by the Church-wardens themselves without calling the Freeholders and also that the Moneys were expending in the Re-edifying Seats of the Churches which belonged to their several houses And they never assented that they should be pulled down And now the Allegation was not allowed in the Ecclesiastical Court but Sentence was given against them And then they Appealed to the Arches where this Allegation was also rejected and for that he prayed a Prohibition And the Court agreed That the Tax cannot be made by the Church-wardens but by the greater number of the Inhabitants it may and a Prohibition was granted But by Yelverton if they be cited by Ex Officio a Prohibition will not lie for so it was Ex insinuatione c. For the Wardens came and pray'd a Citation c. But by Richardson Harvey and Crook privately a Prohibition will lie in both Cases 21. E. Libels in the Ecclesiastical Court against A. pretending that a Seat that the other claimed alwaies in the Church belonged to his House and Sentence in that Court was given against E. and Costs pro falso clamore And he Appealed to the Arches and there when they were ready to affirm the Sentence he prayed a Prohibition And it was moved by Davenport that it might be granted and he cited one Tresham's Case 33 Eliz. where in such a case a Prohibition was granted after an Appeal Richardson There is no cause for any Prohibition but in respect of the costs Hutton said it was a double vexation and the party shall not have Costs for that Hitcham said they came too late to have a Prohibition for the Costs Richardson That is not like to the Probat of a Will where a thing may fall out Triable at the Common Law But there the Principal was tried at the Common Law for they had it as in right Hutton Seats in the generality are in the power of the Ordinary to dispose It is the Prescription which makes that triable at the Common Law and if Prescription be made there and it be found then he shall pay Costs Richardson All Disturbances appertain also to them if it be not upon the Statute of 5 Ed. 6. But if a Title be made there by Prescription it is meerly coram non Judice and if they cannot meddle with the Principal it is not reason that they should tax Costs And a Prohibition was granted 22. H. Farmer of a Mannor A. and other Church-wardens Libel against him in the Ecclesiastical Court for a Tax for the reparation of the Church Henden moved for a Prohibition because that first the Libel was upon a custome That the Lands should be charged for Reparations which Customes ought to be tried at the Common Law And secondly Because the custome of that place is that Houses and Arable Lands should only be taxed for the Reparations of the Church and Meadow and Pasture should be charged with other Taxes But the whole Court on the contrary First although that a Libel is by a Custome yet the other Lands shall be dischargeable by the Common Law but the usage is to alledge a Custome and also that Houses are chargeable to the Reparations of the Church as well as Land And thirdly that a custome to discharge some Lands is not good Wherefore a Prohibition was granted Note that where a man sued in the Ecclesiastical Court prescribing to have a Seat in a Church ratione Messuagii where he inhabited upon the motion of Serjeant Henden a Prohibition was granted for it is a Temporal thing Note By Coke Chief Justice That the keeping of a Church-Book for the age of those which should be born and christned in the Parish began in the 30th year of Henry the Eighth by the instigation of the Lord Cromwel A man was indicted upon the Statute of Ed. 6. That in the Church-yard such
c. may have an Action of Trespass 36. In an Action upon the Case D. shewed he was seized of a Messuage and Land in P. to the same belonging and in the Parish of P. time whereof c. and yet is a Chappel in the North part of the Chancel called the Parsons Chancel and the Plaintiff and all those c. have used to sustain and repair the said Chancel and have used for him and his Family to sit in Seats of the said Chancel and to Bury there the persons dying in the said Messuage and that none other during all the said time c. without their License have used to sit there or to be buried there and that the Defendants Praemissorum non ignari malitiose impediverunt him to enter and sit in the said Seats The Defendant said That the Earl of N. was seized of the Honour of F. and the said Chappel was parcel of the said Honour and that the Defendants being Servants of the said Earl and resident within the said Honour did divers times in the time of Divine Service sit in the Seats of the said Chancel by the command of the said Earl upon which it was Demurred Exceptions were taken to the Declaration because he prescribes to have a Liberty appertaining to his House and doth not shew it is an Ancient House And 2 That the Allegation of the disturbance was ill being general without alleding a special Disturbance and how he was disturbed Resolved That when it is supposed he is seized in Fee of a Capital Messuage and time c. it is there included that it is an ancient Messuage and so might have such a priviledge And for the second it is sufficient to alledge a general Disturbance as is usual in the Case of a Fair or Market 37. D. was Indicted upon the Statute of 5 E. 6. for striking in Paul's Church-yard he pleaded that he was by the Queens Letters Patents created Garter King of Arms and demanded Judgment because he was not so named It was the opinion of the Court that because it was a parcel of his Dignity and not of his Office only and because the Patent is Creamus coronamus nomen imponimus de Garter Rex heraldorum that therefore in all Suits brought against him he ought to be named by this name and thereupon he was discharged of the Indictment And in Penhallo's Case who was Indicted upon the same Statute for drawing of Dagger in the Church of B. against J. S. and doth not say with intent to strike him for which cause the Judgment was quashed Likewise in Child's Case who was Indicted for striking in the Church-yard and it was apud generalem Sessionem Pacis tent apud Blandford and it was not said in Comitatu praedicto for which reason the party was discharged though the County was in the Margin 38. In Pym's Case before-mentioned Corven did Libel in the Ecclesiastical Court against Pym for a Seat in a Church in Devonshire And Pym by Serjeant Hutton moved for a Prohibition upon this Reason That himself is seized of a House in the said Parish and that he and all whose Estate he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court That if a Lord of a Mannor or other person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their charges That if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of a Church if a question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed That the Ordinary who hath cure of Souls will take order in such cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Damc Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in B. R. against a Parson Quare tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it was there held That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there is honour of the decased The same reason of a Coat-Armour c. And the Cbief Justice said The Lady might have a good Action during her life in the case aforesaid because she caused the things to be set up there and after her death the Heir shall have his Action they being in the nature of Heir-Looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanae fo 13. Con. 29. Actio datur si aliquis Arma in aliquo loco posita deleat aut abrasit c. And in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter-Term it was Resolved in the Star-Chamber in the case between Hussey and Katherine Leyton That if a man have a House in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such prescription the Ordinary will dispose of common and vulgar Seats 39. In the County of Dorset there was a Mother-Church and also a Chappel of Ease within the same Parish they of the Mother-Church did rate and tax them of the Chappel of Ease towards reparations of the Mother-Church for the which upon their refusal to pay the same being sued in the Ecclesiastical Court they prayed a Prohibition and for cause alledged That they themselves have used time out of mind c. to repair the Chappel at their own proper cost without having any Contribution at all from them of the Mother-Church and that they have been exempted from all charges and reparations of the Mother-Church and yet for their refusal to pay this Tax they were libelled against in the Ecclesiastical Court and a Sentence there passed against them they therefore prayed a Prohibition By the opinion of the whole Court a Prohibition lieth not in this case in regard that this Prescription is meerly Spiritual and therefore a Prohibition denied per Curiam 40. One was presented ex Officio in the Ecclesiastical Court for the not frequenting of his Parish-Church he there pleads That this was not his Parish-Church but that he had used to frequent another Parish Church and to resort unto that And because they in the Ecclesiastical Court would not receive his plea the Court was moved for a Prohibition for that by the Law in the
28. 2 He is an Ecclesiastical Officer and therefore proper to the Ecclesiastical Judge to have Jurisdiction of his Account And a Clerk of a Parish may sue in the Ecclesiastical Court for his Fees which are called Largitiones Charitativae vid. Register fo 52. for he is quodammodo an Officer Spiritual 21 E. 4. 47. But notwithstanding this a Prohibition was granted And Mountague Chief Justice said That a Churchwarden is not an Ecclesiastical Officer but Temporal employed in Ecclesiastical business Quaere Whether in that case the Minister may require him to render an Account and if he refuse Whether the Ecclesiastical Judge may compel him to Account 20. In Trespass by Churchwardens for taking a Bell out of the Church in the time of their Predecessors it was Adjudg'd That the Action did lie whereas it was declared ad damnum ipsorum which shall be supposed ad damnum Parochianorum 21. The Parishioners of the Parish of Al-Hallowes in London did prescribe to chuse their Churchwardens every year and they chose W. their Churchwarden The Parson by virtue of a late Canon that he should have the Election chose C. to be Churchwarden and procured him to be Sworn in the Ecclesiastical Court and a Prohibition was prayed for that it being a Special custome the Canons cannot alter it and if every Parson might have Election of the Churchwardens without the assent of the Parishioners they might be much prejudiced And so it was said That it had been Adjudg'd Pasch 5 Jac. in the case of the Parishioners of Walbrook in London 22. Although as aforesaid the Law doth make Church-wardens a kind of Corporation and enables them by that Name to take moveable Goods and Chattels and to sue and be sued at Law concerning such Goods for the use and benefit of their Parish yet they cannot take an Estate of Lands to them by name of Church-wardens nor can Churchwardens prescribe to have Lands to them and their Successors for they are no Corporation to have Lands but for Goods of the Church only CHAP. XIV Of Consolidation or Vnion of Churches 1. Consolidation what whence so called by whom and in what cases it may be made 2. The several kinds of Consolidation 3. The reasons and grounds thereof in the Law 4. The Requisites of Law in order to a Consolidation 5. How Consolidation is practised here with us and how in France 6. The division or distinction which the Canon Law makes of Consolidation 1. COnsolidation is the uniting combining or consolidating of two Churches or Benefices in one This cannot be done without the consent of the Bishop the Patron and the Incumbent This word thus used in an Ecclesiastical sense takes its denomination from what the Civil Law intends by consolidating the Interest of Possession and Property together which in that Law is called Consolidatio ususfructus proprietatis As when a man having the Usufruct of certain Lands by way of Rent Devise or otherwise doth then and at the same time purchase the Fee or Inheritance thereof hoc casu Consolidatio fieri dicitur Instit de Vsufruct § 3. So that in such Secular concerns according to that Law it properly signifies an Uniting of the possession occupation or profit with the Property of the thing so prepossessed which is sometimes called an Vnity of possession being a Joynt-possession of two Rights in the same person by distinct and several Titles By the Statute of 37 H. 8. cap. 21. it was lawful to make an Union or Consolidation of two Churches in one whereof the value of the one was not above six pounds in the King's Books of the First-Fruits and not above one mile distant from the other And by a late Statute of 17 Car. 2. cap. 3. it may be lawful for the Bishop of the Diocess Mayor Bayliffs c. of any City or Town Corporate and the Patron or Patrons to unite two Churches or Chappels in any such City Town or the Liberties thereof provided the Churches so united exceed not the annual value of an hundred pounds unless the Parishioners esire otherwise See the Statute at large 2. By this Consolidation or Union of Churches one of the Benefices becomes void yea extinct in Law Illud enim quod alteri unitur extinguitur neque amplius per se vacare dicitur DD. in c. cum accessâ—ssent de Constit Iudo Gomez in Regul Cancell Gall. de Trien possess q. 8. Jo. Andr. ad Clem. 1. de Supplen Neglig Praelat Again the Law in express terms says That intereunt Beneficia Vnione quando duo vel plura Beneficia in unum in perpetuum conjunguntur c. Sicut unire de Excess Praelat Of this Consolidation or Union the Law makes a threefold distinction or it may be done three several ways in construction of Law 1 When one and the same person is set or appointed over two Churches Can. temporis qualitas 16. q. 1. c. 1. Ne Sede vacante This with us amounts to a Plurality but not unto a Consolidation or Union 2 When one Church is so united to another that that which is United amittit jus suum eo utitur cui fit unio c. Recolentes § sin de Stat. Monac Lindw de Locat Conduct c. licet glo verb. Appropriationum 3 When Two or more Churches or Benefices are so united together as that the one is not subject to the other in which case Quod melius est retinetur arg c. Medicamentum de poenit dist 1. gl in regu 11. Cancell Innoc. 8. 3. There are several Causes or Reasons in the Law for this Consolidation Incorporation Annexation or Union of Churches and they are chiefly these five 1 An unlawful dividing of those Churches or Ecclesiastical Benefices precedent to their reintegration or intended reconsolidation as when such as had been formerly united were illegally divided Otho Constit Ne Ecclesia una c. cum sit ars gl ib. in ver Reintegrentur 2 For the better Hospitality and that the Rector might thereby be the better enabled to relieve the Poor 25. q. 2. posteaquam § his ita dict gl Otho Const 3 The overnighness of the Churches each to other in point of Scituation insomuch that one Rector may commodiously discharge the Cure of both by reason of the vicinity of the places Arg. extr de Praebend c. Majoribus 4. For or by reason of a want or defect of Parishioners as when one of the Churches is deprived of her people by some incursion of an Enemy or by some mortal Disease or Sickness or the like 11. q. 1. Vnio gloss ubi supra 5. For and by reason of the extream Poverty of one of the Parishes Extr. de eta qua eam te Extr. de Praebend vacant in fin vid. Tholos Syntagm jur lib. 17. cap. 5. nu 7. All which Causes or Reasons of Consolidation are enumerated out of the Canon Law by John dè Aton in his Gloss upon Cardinal
Otho's Constitutions and whatever other causes of Consolidation are asserted by the DD. may be all referr'd to one or other of the foresaid Reasons Likewise there are certain Solemnities required by the Canon Law to be used and observed in the consolidation and union of Churches and Ecclesiastical Benefices the impracticability whereof in this Realm having otherwise provided in such cases can have no such malign influence in Law as to invalidate the thing for want of some Circumstantials so long as there is a retention of the Essentials according to the Laws and Constitutions of this Kingdom Vnio facta ab Episcopo debet intervenire Consensus Capituli sui Clem. si Vna de reb Eccl. non aliend Item requiritur Consensus Patroni Clem. in agro § ad haec de Stat. Mona Item Nullum habet effectum vivente Beneficiato Card. Zab. in dict Clem. Si una c. Item Verus valor Beneficiorum Exprimi debet c. 4. In all Consolidations regularly there ought to be Causa Necessitatis vel Vtilitatis Also the just and true value of the Benefices ought to be known as well of that which is to be united as of that to which the other is unitable in order whereunto there ought to issue a Commission of Enquiry touching the said cause and value at which all persons pretending Interest are to be or may be present upon Summons or Notice thereof timely given them to that end for no Consolidation or Union of that kind ought to be made non vocatis vocandis Rebuff Resp 195. 5. This Form touching Consolidations and union of Churches and Ecclesiastical Benefices is practiced in France which though there appears nothing therein but what seems consonant to Reason yet the Statute-Laws of this Realm have herein made other provision in this matter And that which we now commonly call Consolidation the Canon Law which is best and most properly acquainted with this matter calls Vnion Touching which there are in use and practice many things in divers Nations and Countries which were Incognita to the Interpreters of that Law and not in all things consonant to each other thereby rendring this Subject the more perplexed by reason of the several modes of practice diversified according to the various Constitutions of several Nations respectively for which reason the Interpreters of the Canon Law are the less positive in reducing the state of this matter to such a point of certainty as may be said Infallible in Law only they all agree in some certain Essentials to an Union as also for the most part in this Definition thereof viz. That Vnio est Beneficiorum seu Ecclesiarum ab Episcopo vel ab alio Superiore facta annexio To which this also may be added by way of description though not by way of definition That quando fit unio Ecclesia in proprietatem concedi solet Cap. in cura de jur Patronat and it must be Vnio Beneficiorum for there cannot be an Union unless there be plura Beneficia in the case L. 1. per totum ff de Optio Legat. Also it is Beneficiorum seu Ecclesiarum because the word Benefice is in it self a general term comprehending all Benefices great and small Regular and Secular Dignities and Offices C. 1. de reg jur in 6. c. extirpandae § qui vero de Praebend So that Bishopricks as well as other Benefices may be united and annexed But a Bishoprick which the Law calls culmen Dignitatis doth not regularly fall under the name or notion of Benefice c. pen. de Praebend and yet two Bishopricks may be united c. Decimas seq 16. q. 1. Rebuff de Vnion Benefic nu 4 5. 6. This Consolidation or Union at the Canon Law is either Perpetual or Temporal if Perpetual then it must be so expressed in the Union that in perpetuum univimus c. exposuisti de Praeb if Temporal then it is only for his life in whose favour the Vnion is made c. 1. ne Sede vacante and at his death it expires c. quoniam Abbas de Offic. Delegat But the Practice with us knows nothing of the Temporal Member of this distinction nor is the practice thereof at this day received in France Rebuff ubi supr nu 9. such Temporal Unions being only in contemplatione personae non Ecclesiae whereas the Law is Ecclesiae magis favendum est quam personae Dic. c. 1. c. requisisti de Testa Oldr. Consil 257. And where two Parochial Churches are consolidated or united that Church to which the other is united shall be the Superiour and principal the other which is united is the Inferiour and Accessory yet shall enjoy the Priviledges of that Church to which she is united c. recolentes in fin de stat Monach. Lastly The more worthy Benefice is never united to the minus digno and therefore a Parochial Church may not be united to a Chappel sed è contra Sic c. exposuisti de Praebend CHAP. XV. Of Dilapidations 1. What Dilapidation signifies how many waies it may happen the Remedies in Law in case thereof and to what Court the cognizance thereof properly belongs 2. Provision made by the Canon for prevention of Dilapidations 3. Dilapidation twofold in construction of Law An Exposition of the said Canon the Bishops power of Sequestration in case of Dilapidation 4. By whom the Body of the Church and by whom the Chancel shall be kept in repair How the charge of Repair in the case of Dilapidations shall be apportioned and what the Law in such cases where one Parish is divided into Two 5. Dilapidation of Ecclesiastical Edifices a good cause in Law of Deprivation 6. The Injunction of King Ed. 6. for prevention of Dilapidations 7. Leases made by a Parson void by Statute for Non-residence to prevent Dilapidations 8. The wasting the Woods of a Bishoprick a Dilapidation in Law such Woods being the Dower of the Church 9. A Vicar felling down Timber Trees and Wood in the Church-yard is a Dilapidation and good cause of Deprivation 1. DIlapidation is the Incumbents suffering the Chancel or other the Edifices of his Ecclesiastical Living to go to ruine or decay neglecting to repair the same It extends also to his committing or suffering to be committed any wilful Waste in or upon the Glebe-woods or other Inheritance of his Church Against which provision is made by the Provincial Constitutions whereof Sir Simon Degge takes notice in his Parsons Counsellor though in truth the Canon there provides rather as to satisfaction for than prevention of such Dilapidations Lindw c. si Rector alicujus Ecclesiae Gloss ibid. But the Canon Law is express and full in all respects relating to this implicit Sacriledge nor doth the Custome of England or the Common Law leave the Church without sufficient Remedy in this case albeit it postpones the satisfaction of dammages for Dilapidations to the payment of Debts as the Canon Law prefers it before the payment of Legacies
than the Bishop himself or other Ordinary which also must be given to the Patron personally if he live in the same County and if in another County then Publication thereof in the Parish-Church and affixed on the Church-Door will serve turn if such Notice doth express in certain as it ought to do the cause of the Deprivation c. As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion the Ordinary is to give the Patron Notice thereof which Notice ought to be certain and particular Before Lapse can incurr against a Patron Notice of his Clerks being refused by the Ordinary for Insufficiency must be given to the person of the Patron if he may be found and it is not in that Case sufficient to fix an Intimation thereof on the Door of that Church to which he was Presented D. 16 El. 327. 7. b. Adjudged 5. It is said That a Lapse is not an Interest naturally as is the Patronage but a meer Trust in Law And if the Six months be incurred yet the Patrons Clerk shall be received if he be Presented before the Church be Filled by the Lapse Observe 7 Eliz Dyer 241. for it seems by that case that the Patron should Present against the Kings Lapse for he hath dammage but for half a year And Hob. Chief Justice says That a Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and lastly in the King the end of which Trust is to provide the Church of a Rector in default of the Patron and yet as for him and to his behoof And therefore as he cannot transfer his Trust to another so cannot he divert the thing wherewith he is entrusted to any other purpose Nor can a Lapse be granted over as a Grant of the next Lapse of such a Church neither before it fall nor after If the Lapse incurr and then the Ordinary die the King shall Present and not the Executors of the Ordinary For it is rather an Administration than an Interest and the King cannot have a Lapse but where the Ordinary might have had it before If an Infant-Patron Present not within Six months the Lapse incurrs The Law is the same as against a Feme-Covert that hath right to Present 33 E. 3. Qua. Impedit 46. 6. In the first Paragraph of this Chapter it is said That Tempus Semestre authoritate Concilii non incipit versus Patronos nisi à tempore Scientiae mortis personae that is of the last Incumbent And so Adjuged upon a Writ in the time of E. 2. and said to be per Legem Consuetudinem Regni hactenus usitatas As if the Incumbent die beyond Sea the Six months are not computed from the time of his death but from the time of the Patrons knowledge thereof and so it was Adjudged in a Quare non admisit between the Abbot of St. Mary Eborum and the Bishop of Norwich as aforesaid For the Six months are not reckoned from the death of the Last Incumbent but from the time the Patron might according to a reasonable Computation having regard to the distance of the place where he was at the time of the Incumbents death if he were within the Realm at that time have come to the knowledge thereof for he ought afterwards to take notice thereof at his peril and not before for that he was in some other County than that wherein the Church is and wherein the Incumbent died And if the Ordinary refuse a Clerk for that he is Criminous in that case the Patron shall not have Six months to Present after Notice thereof given him but of the Avoidance The Law is the same in case of Refusal by reason of Illiterature But if the Church be void by Resignation or Deprivation the Six months shall be computed from the time of Notice thereof given to the Patron and not from the time of the Avoidance Yet if the Ordinary refuse a Clerk because he is Criminous he is to give notice thereof to the Patron otherwise the Lapse doth not incurr So likewise if he be refused for Common Usury Simony Adultery or other Notorious Crime Notice thereof ought to be given to the Patron otherwise the Lapse doth not incurr A Lay Patron ought to have Notice ere the Lapse shall incurr in case his Clerk be refused for Illiterature otherwise as to a Spiritual Patron because the Law presumes he might well know of his insufficiency before he presented him And if the Bishop who took a Resignation dies the Lapse doth not incurr to his Successor without Notice to the Patron 7. In a Quare Impedit the Defendant pleaded That he demanded of J. S. the Presentee of the Plaintiff to see his Letters of Orders and he would not shew them and also demanded of him his Letters Missive or Testimonial testifying his ability and because he had not his Letters of Orders nor Letters Missive nor made any proof of them to the Bishop he desired leave of the Bishop to bring them who gave him a week and he went away and came not again and the Six months passed and the Bishop Collated by Lapse It was Adjudged in this Case That these were no Causes to stay the Admittance of the Clerk for the Clerk is not bound understand it only at Common Law to shew his Letters of Orders and Letters Missive to the Bishop but the Bishop must try him upon Examination 8. A Parson of the Church of S. of the value of Ten pound took a Second Benefice without a Dispensation and was Instituted and Inducted and continued so for twelve years The Patron presented J. S. who was Instituted and Inducted and so continued divers years and died The Queen presented the Defendant C. ratione Lapsus in the time of A. who was Instituted and Deducted B. the Patron brought a Quare Impedit against the Ordinary and C. It was held by the Justices That the Writ did well lie and that Tempus occurrit Reginae in this Case and that last Clerk should be removed And it was held by the Justices That upon a Recovery in a Quare Impedit any Incumbent that comes in pendente Lite should be removed 9. In the Case between Cumber and the Bishop of Chichester it was Resolved 1 If Title of Lapse accrues to the King and the Patron Presents yet the King may Present at any time as long as the Presentee is Parson but if he dies or Resigns before the King Presents he hath lost his Presentment 2. If the King hath Title by Lapse because a Parson hath taken a Second Benefice if the Parson dies or Resigns his First Benefice and the Patron Presents whose Presentee Resigns upon Covin and dies the King hath lost that Presentment CHAP. XXIII Of Collation Presentation and Nomination 1. What Collation is and how it differs from Presentation 2. Collation
gains not the Patronage from the Crown 3. The Ordinary's Collation by Lapse is only in the Patron 's right 4. What Presentation is and how in ease of Co-heirs or Joynt-tenants or Tenants in Common 5. Whether the Grantee of the next Presentation not Presenting at the First Avoidance shall lose the benefit of his Grant 6. The Right of Presentation is not an Ecclesiastical but Temporal Inheritance and cognizable at the Common Law 7. The power of the Ordinary in case of Coparconers Joyntenants or Tenants in Common as to Presentation 8. In what Case the Bishop hath Election whose Clerk he will Admit 9. Whether a Presentation is revokable before Institution 10. Whether the Son may succeed his Father in the Church and who may vary from or repeal his Presentation 11. What Nomination is and the Qualifications thereof 12. In what Case the Presentation is the Nomination or both as one in Law 13. In what case the Nominator shall have a Quare Impedit as well as he that hath Right of Presentation And there may be a Corrupt Nomination as well as a Corrupt Presentation 14. Whether the Collatee be Incumbent if the Bishop Collate him within the Six months And in what Case the Kings Presentation within the Six months may be an Vsurpation or not 15. Where the Ordinary Collates the Patron is to take notice of it at his peril 16. Who shall Present in case the Ordinary to whom a Lapse is devolved be within the Six months translated to another Bishoprick 17. A Resignation to a Proctor without the Bishops Acceptance makes not the Church void 18. A Parochial Church may be Donative exempt from the Ordinary's Jurisdiction and is Resignable to and Visitable by the Patron not the Ordinary 19. Where Two are to Present by Turns what Presentation shall serve for a Turn or not 20. By the Canons the Son may not succeed the Father in the same Church 21. To what a Presentation may be made 22. The Kings right of Presentation as Supream Patron 23. In what case the Kings Prerogative to Present doth not take place 24. In what Cases it doth 25. To whom the Patronage of an Archbishoprick belongs 26. Whether Alien Ministers are Presentable to a Church in England 27. In what Cases the Patron may Present de novo 28. Difference between the King and a Common person in point of Presentation 29. A Collation makes no Plenarty where it is tortious 30. Presentation may be per parol as well as by Writing 31. What amounts to a Revocation of the King's Presentation 32. Causes of Refusal of the Clerk Presented 33. Certain Law Cases pertinent to this Subject 34. Whether Institution granted after a Caveat entered be void 35. What shall be held a Serving of a Turn and good Plenarty and Incumbency against a Patron in Severalty 36. A Clerk refused by reason of his not being able to speak the Welsh Language 37. What is the best Legal Policy upon every Presentation by Vsurpation 38. One of Two Grantees of an Advowson to whom the other hath released may Present alone and have a Qua. Imp. in his own Name 39. A Clerk refused for Insufficiency by the Bishop may not afterwards be Accepted 1. COllation in its proper signification is the bestowing of a Benefice by a Bishop that hath it in his own proper right gift or patronage distinguish'd from Institution only in this That Institution into a Benefice is at the instance motion or Presentation of the Patron or some other having pro tempore the Patrons Right performed by the Bishop Extra de Instit de Concess Praeben c. But Collation is not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof or when the Bishop or Ordinary hath right to Present for Lapse of the Patron and yet sometimes Collation is and hath been used for Presentation And so Presentation Nomination and Collation are commonly taken for one and the same thing in substance though at times distinguished And whereas it hath been a Question If one hath the Nomination and another the Presentation which of them shall be said to be the very Patron it hath alwaies been taken to be the better opinion that he who hath the Nomination is Patron of the Church And where an Abbot had the Presentation and another the Nomination and the Abbey surrendred to the King he that hath the Nomination shall now have all for the King shall not Present for him that being a thing undecent for the King But as to Collation and Presentation they were in substance one and the same thing as aforesaid But to speak properly Collation is where the Bishop himself doth freely give a Benefice which is of his own Gift by right of Patronage or Lapse This word Collation seems also to be frequently used when the King Presents and hence it is that there is a Writ called Collatione facta uni post mortem alterius c. directed to the Justices of the Common Pleas Commanding them to direct their Writ to a Bishop for the Admitting one Clerk in the place of another Presented by the King which Clerk during the Suit between the King and the Bishops Clerk is departed this life For Judgment once given for the Kings Clerk and he dying before his Admission the King may bestow his Presentation on another This Collation Presentation and Nomination are in effect Synonima being distinguished only in respect rather of Persons than of Things 2. Yet there may be a great difference betwixt Presentation and Collation which gains not the Patronage from the King as appears in the Case of the Queen against the Bishop of York where the Queen brought a Quare Impedit against the said Bishop and one Monk and counted upon a Presentment made by King Hen. 8. in the right of his Dutchy of Lancaster and so conveyed the same to the Queen by Descent The Bishop pleaded That he and his Predecessors have Collated to the said Church c. and Monk pleaded the same Plea upon which there was a Demurrer And it was moved by Beaumont Serjeant That the Plea is not good for a Collation cannot gain any Patronage and cannot be an Usurpation against a Common person much less against the Queen to whom no Lapses shall be ascribâ—d and although the Queen is seized of this Advowson in the right of her Dutchy yet when the Church becomes void the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist 31. Quando Rex praesentat non in jure Coronae tunc incurrit ei Tempus Hamm. Serj. By these Collations the Queen shall be put out of possession and put to her Writ of Right of Advowson but the same ought to be intended not where the Bishop Collates as Ordinary but where he Collates
Presentment be forfeited as a Chattel principal and distinct and then the Outlawry is reversed the party shall have Restitution of the Presentment 31. If the King dies before his Clerks Admission and Institution it is a Revocation in Law of his Presentation Or if the King Present one to a Benefice and then Present another to the same without Revoking the former or making any mention thereof yet this also is a Revocation in Law of that former unless the Second were by fraud or surreptitiously obtain'd Likewise if the Kings Presentee dies after Institution and before Induction that also is a Revocation in Law because the King had not the effect of his Presentation and so shall Present again Or if the King Present and then before Institution revoke the same but before Notice thereof to the Ordinary the Ordinary Institute and Induct him yet it seems that Presentation is well Revok'd in Law and the Notice thereof to the Ordinary is not material as to the substance of the Revocation but only to discharge him from being a Disturber D. 12. El. 292. adjudg'd Dyer makes a Quaere thereof Dubitatur D. 16 El. 328. Vid. 25 E. 3. 47. Rol. Abr. ubi supr lit U. 32. If the Patron who Presents his Clerk be Excommunicated it is a good cause of Refusal of the said Clerk it is also said to be so hold in the Books of the Common Law And where there are Three Joyntenants of the same Advowson or of the next Avoidance and only one or two of them Present the Bishop is no Disturber if he refuse the Clerk so Presented for he is not bound to Admit the Clerk unless all the Joyntenants joyn in the Presentation But where there are Three Grantees of the next Avoidance and the Church become void and Two of them Present the Third being a Clerk the Ordinary in that case is to Admit him for that he cannot joyn in a Presentation of himself and he may relinquish his Title and accept the Presentment of the others 33. A. the Defendant had been Parson for Three years and pleaded Plenarty generally by Six months of the Presentation of one Styles a Stranger to the Writ and the Court held the Plea to be naught because the Defendant shewed no Title in Styles 34. In the Case between Phipps and Hayter Prohibition was granted for the Church of T. the Suit being in the Arcbes after Induction to avoid the Institution for that the Institution was made after a Caveat entered Not to grant Institution c. for that doth not make the Institution void at the Common Law 35. In a Quare Impedit A. and B. severally Patrons of the Moity of the Church of S. in Fee to Present by Turns A. Presents his Clerk who is Admitted and Inducted The Church is void again B. Presents his Clerk who is likewise Inducted and after is deprived The Bishop Collates without giving notice of the Deprivation A. grants his Advowson to J. S. in Fee the Clerk Collated by the Bishop died B. Presenteth and is disturbed Resolved 1 When A. had right to Present upon the Deprivation as in his Turn although the Collation of the Bishop was not good yet it was but a thing in Action and when he had granted the Advowson over the Grantee could not have this thing in Action nor the Grantor could not have it for he had destroyed it and so none could have it 2 Resolved although the Grant was sufficient to pass the Advowson in Fee yet the Collation of the Bishop was good against all but against the very Patron so as he might have removed the Incumbent by a Quare Impedit but when he doth not remove him so as he dies Incumbent this is as a serving of his Turn and a good Plenarty and Incumbency against him 36. In a Quare Impedit the Defendant pleaded That the Divine Service there was in the Welsh Tongue and the Parishioners understood not the English and the Presentee could not speak Welsh and therefore he refused him It was the Opinion of all the Justices That it was a good cause of Refusal of him for he cannot instruct his Flock according to his duty and charge But in this Case it was held That Notice ought to be given to the Patron himself if he be within the County if not publick Intimation to be on the Church-door 37. In a Quare Impedit brought in a Case between La. and Le. it was held That the King cannot be a Disturber but the Bishop may be a special Disturber and in that case it was said It is good policy upon every Presentation by Usurpation to bring a Quare Impedit as speedily as may be and it is as good policy to name the Bishop in the Writ for then he shall not Collate for Lapse if the Church remain void Six months nor shall the Metropolitan Collate if the time come to him for the same Lapse For it was said to be a Rule That the Metropolitan shall never Collate for Lapse but when the immediate Ordinary might have Collated and hath surceased his time and in such case the Ordinary cannot Collate because he is made party to the Writ 38. In a Case between Benet and the Bishop of Norwich it was Adjudged That if the next Avoidance of a Church be granted to A. and B. and A. Release to B. and after the Church become void in that case B. may Present and upon Disturbance have a Quare Impedit in his own Name 39. If the Bishop shall for Insufficiency refuse the Clerk that is Presented to him he may not afterwards Admit him and therefore where the Patron Presented J. S. his Clerk to the Bishop and upon Notice by the Bishop given to the Patron of the Insufficiency of the Clerk the Patron Presented another Clerk and then the Bishop Admits the first Clerk which was Presented within Six months In this case it was Adjudged That the Bishop was a Disturber for having once refused him for Insufficiency he cannot afterwards accept of him CHAP. XXIV Of Examination Admission Institution and Induction 1. What is here meant by Examination where enjoyned how and by whom and at what times to be performed 2. In what case the Bishop is held at Common Law a Disturber in refusing one Clerk and Admitting another 3. The Ordinary as he is not obliged to Examine the Clerk at some certain times so he may not refuse to examine him during all the Six months 4. Although the Six months be Elaps'd yet if the Patron Present the Church not being Full the Bishop ought to Admit his Clerk 5. How an Vsurpation upon a Lease for years puts the very Patron out of possession 6. Admission what and under what qualifications it ought to be 7. What the Remedy where the Ordinary doth refuse to Admit the Clerk the Form of such Admission 8. What Institution is and the
ut nostrum de Office Archidiac Somewhat in resemblance to our Tenents by the Verge or such as are Admitted by the Rod in a Court of ancient Demesn But this Institution as practicable with us consists in the Letters of Institution directed from the Bishop or Ordinary in whose Diocess the Church is to the Clerk the Presentee by which he Admits him as lawful Incumbent to that vacant Church whereto he is Presented by the Patron thereof the said Clerk having not only first taken the Oaths of Allegeance and Supremacy with Renunciation of all Foreign Powers and Jurisdictions according to the Laws and Statutes in that behalf provided but also of Canonical Obedience to the Bishop of that Diocess and his Successors and that he hath made no Simoniacal Contract for or concerning the said Presentation whereupon the said Bishop or Ordinary doth by his said Letters of Institution constitute and invest the said Clerk Rector of the Rectory of the said Parochial Church cum cura animarum Parochianorum together with all Rights Priviledges and Emoluments belonging to the same Juribus Consuetudinibâ—s Nostris Estiscopalibus Ecclesiae nostrae Cath c. Dignitate honore in omnibus semper salvis Dioecesis idem significat in effectu quoad Jurisdictionem Ecclesiasticam quod Territorium quoad Jurisdictionem Temporalem Ita Andrae DD. in c. cum Episcopus de Offic. Ord. lib. 6. Dioecesis significat locum Spiritualem sicuti Territorium locum Temporalem Alberic in suo Dict. ver Dioecesis This Institution to a Benefice may not by the 39th Article of the Canons be to any person preordained except he first shew the Bishop his Letters of Orders as also if he require it a Testimonial of his former good life and behaviour Moreover by the Law he is obliged to subscribe the Articles of Religion to Swear Canonical Obedience to the Archbishop of Canterbury and his Successors and to his Diocesan and for his Personal Residence if it be a Vicarage Juram entum de Canonica Obedientia viz. Ego A. B. juro quod praestabo veram Canonicam Obedientiam Episcopo Londinensi ejusque Successoribus in omnibus licitis honestis Sic me Deus adjuvet If a Clerk should kill his Prelate to whom he hath Sworn Canonical Obedience it is Pety Treason Vid. 19 H. 6. 47. b. vid. Stat. 25 E. 3. De Prodic cap. 2. But if the Diocesan notwithstanding the exhibiting the Presentation before him or his Vicar General having power to Institute and notwithstanding Requisition made him by the Clerk Presented in order to Institution shall refuse to Institute and Admit him he may thereof enter his Complaint before the Dean of the Arches who thereupon sends his Letters to the said Bishops which Letters or Rescript is termed Duplex Querela So that as to the substance of the Premisses touching this Subject the practice with us at this day doth well nigh correspond with the Ancient Canon Law whereby it is expresly Ordained lib. 3. Decretal That all Ecclesiastical Livings and Benefices shall be had by Institution to be by the Bishop or his Chancellor or such other as hath Episcopal Jurisdiction positively declaring That without such Institution neither any Benefice is lawfully obtained nor can be lawfully retained Adding withal That Benefices void ought to be granted within Six months after knowledge of the Voidance thereof otherwise the Grant thereof devolves and comes to the Superiour and that he who doth cause or procure himself to be Instituted into a Benefice the Incumbent thereof being alive shall be deposed from his Orders Decretal ibid. 9. Albeit the Cognisance of this matter of Institutions is so properly and connaturally inherent in the Ecclesiastical Jurisdiction yet the Temporal and Common Law it seems hath in some cases took notice thereof for it is there Reported That every Rectory doth consist upon Spiritualty and Temporalty As to the Spiritualty viz. Cura animarum the Presentee is compleat Parson by Institution for when the Bishop upon Examination finds him able then he doth Institute him in these words viz. Instituo te ad tale Beneficium habere Curam animarum of such a Parish Accipe Curam tuam meam And the very Institution to a Benefice the Law understands as an Acceptance and the having of a Benefice as in that Case of Digby where it is held That if a Clerk be Presented Admitted and Instituted to a Benefice with Cure to the value of 8 l. and afterwards and before Induction he accepts of another Benefice with Cure and is Inducted in the same the First Benefice is void by the Statute of 21 H. 8. For the words of the Statute are A Parson having one Benefice with Cure c. Accept and take another c. And he who is Instituted to a Benefice is said to have Accepted a Benefice and to have a Benefice And he that is Instituted may enter into the Glebe-Lands before his Induction and hath Right to have it against any Stranger whatever And albeit by the Civil and Canon Law an Institution granted after a Caveat Entered is void yet by the Common Law it is otherwise 10. By the Institution the Parson hath only Jus ad rem he hath not Jus in re until he hath Induction and therefore if a Prebendary Parson or Vicar after he is Admitted and Instituted and before he be Inducted grant an Annuity out of his Prebend Parsonage or Vicarage and the same be Confirmed by the Patron and Ordinary or by the Dean and Chapter yet this shall not charge the Glebe or the Successor of the Prebendary Parson or Vicar for although by his Institution he hath as aforesaid Jus ad rem yet he hath not Jus in re but the charge in such case shall lie upon the person of the Prebendary Parson or Vicar and not upon the Lands 11. The Church at this day since the Statute of Westm 2. is not Full by Institution of the King and therefore if the King hath a Title by Lapse to Present pro hac vice and he Presents and his Clerk be Instituted but dies before Induction the King in that case may Present again and so it hath been Adjudged Which plainly shews that Institution without Induction doth not work a Plenarty It hath also been held That the Letters of Institution Sealed with another Seal and made out of the Diocess is good Dyer 348. Weston's Case acc enough Of if a Caveat be Entered with a Bishop and he after grant Institution yet the Institution is not void by the Common Law otherwise by the Spiritual Law Notwithstanding what was just now said it is Adjudged in Digbie's Case That a Benefice is taken received and had by Institution only and therefore a Qualification or Dispensation following comes too late So that if a man having one Benefice with Cure by Institution only accept another by Institution only without Dispensation
the Common Law makes Avoidance Actual if the Patron will 12. Proceedings being in the Ecclesiastical Court to remove an Incumbent after Induction a Prohibition was granted to stay the same One Oliver sued a Quare Impedit against Hussey and while that depended Hussey was Instituted and Inducted and Oliver sued Hussey in the Spiritual Court to remove him Noy pray'd a Prohibition First because he may not sue in Two Courts for the same cause Secondly because it is a Suit after Induction and upon that last point the Court granted a Prohibition 13. In the Case of Dennys against Drake it was said That if a man be Instituted to a Benefice he ought to pay the First-Fruits before Induction by the Statute But by the Common Law it was otherwise for he is not to have the Temporalties until Induction and therefore he could not pay the First-Fruits but another person cannot be Presented to his Benefice during the continuance of the First Institution And an Institution to a Second Benefice is a present Avoidance of the First 14. G. Parson of the Church of E. did by Instrument in Writing Resign his Benefice before a Notary Publick and others into the hands of the Bishop and the Resignation was absolute and voluntary and to the use of M. and B. or either of them And it was further inâ—erted in the said Instrument of Resignation Protestatione sub Conditione quod si aliqui eorum non Admissi fuerant per assentum Episcop infra Sex menses quod tunc haec praesens Resignatio mea vacua pro nulla habeatur nunc prout tunc tunc prout nunc and Cestuy que use came within the time limited to the Bishop and did offer to Resign to him which the Bishop refused to accept c. Crooke for the Plaintiff Forasmuch as the Plaintiff may Resign on Condition as well as a particular Tenant may Surrender upon Condition And Two Parsons may Exchange and if the Estate be Executed on the one part and not on the other that Parson whose part was not Executed may have his Benefice again as it is Adjudged in the 46 E. 3. But Coke Sollic and Godfrey were on the contrary Opinion For that the Incumbent may not Transfer his Benefice to another without Presentation as appears in the recited Case of 46 E. 3. Also the Resignation is not good and the Condition void because it is against the nature of a Resignation which must be Absolute Sponte pure Simpliciter and is not like to a Condition in Law as in the said Case of Exchange of 46 E. 3. for the Law doth annex a Condition to it but a collateral Condition cannot be annext by the parties themselves Also this is an act Judicial to which a Condition cannot be annex'd no more than an Ordinary may Admit upon Condition or a Judgment be confessed on Condition which are Judicial Acts. But admitting the Condition to be good yet a new Induction ought to be made by the Ordinary for the Church became one time void and is not like to the Case in 2 R. 2. Quare Impedit 143. Where Sentence of Deprivation was given and the Sentence presently reversed by Appeal there needs no new Institution for that the Church was never void And upon Arguments given in Writing by the Civilians to the Judges the Judgment was entered Quod querens nihil capiat per Billam 15. In Rud's Case against the Bishop of Lincoln it was inter alia Resolved by the Court That when one having a good Title to Present and an Incumbent by Usurpation is Admitted Instituted and Inducted and after that the Patron Presents and the Bishop refuse and after the Patron recover and then he which had this Presentation exhibits it to the Bishop this is now a good Presentation and the Patron cannot revoke or give him a new Presentation But if the Patron before the death of the Incumbent make Letters of Presentation that is void because he had no Title to Present 16. Induction is nothing else but the putting of the Parson into Actual possession of the Church and Glebe which are the Temporalties of the Church or the making of a Clerk compleat Incumbent of a Church This is Induction and it is by Letters from the Bishop of the Diocess directed to all and singular the Clerks Rectors Vicars c. within the said Diocess to put the Clerk or his lawful Attorney for him and in his name into the Actual possession of the Church to which he had been Presented and Instituted together with all the profits dues members and appurtenances whatsoever thereunto belongings or appertaining of the due execution whereof a Certificate endorsed on the Instrument of Induction and Subscrib'd by a competent number of Witnesses ought to be returned to the said Bishop or Ordinary who may appoint the Archdeacon to give Induction yet by Prescription it seems the Dean and Chapter of Pauls as also the Dean and Chapter of Lichfield may give Induction It is also said That an Induction made by a Bishop is void where it belongs to a Dean and Chapter by Prescription But an Induction by the Patron is void yet the King 's Grantee of a Free-Chappel shall be put into possession by the Sheriff of the County and not by the Ordinary of the place 17. This Induction is not a Spiritual but a Temporal Act and therefore if after the Clerk hath been Presented by the Patron and Admitted and Instituted by the Bishop the Archdeacon shall refuse to Induct him into the Benefice an Action upon the Case lieth for the Clerk against the Archdeacon And after the Incumbent is thus Inducted he may then plead any Plea in Bar of a Quare Impedit brought against him which concerneth his Possession and so may plead a Release in Bar because he hath the Freehold in him which shall not be lost without his Answer For by this Induction or being led into the Church he hath as it were Livery and Seisin thereof given him as the lawful Incumbent by delivery of the Keys of the Church to him and that by order of the Bishop whereof Publication is then made to the Parishioners by ringing one or more the Bells And albeit a Parson hath his Presentation Admission and Institution and that upon a lawful Title yet he is not a possessor of the Parsonage according to the Letter of the Law till his Induction Which Induction is as aforesaid a Temporal Act and as the Opinion of the Court was in Hutton's Case Triable by Temporal Law and since by Induction the Church is Full it is not to be avoided but by a Suit of Quare Impedit or the like at the Common Law and not to be undermined by alledging Insufficiency in the Institution in the Court Ecclesiastical for that may come in question upon the Trial of the Induction at the Common
yet is otherwise by Statute Law 7. The Release of the Next Avoidance made after the Church becomes void is void 8. A wide difference between the Common Law and the Canon in respect of Plenarty and Voidance 9. What Cession is and who shall Present in that case 10. A Parson Beneficed accepting an Archdeaconry falls not under this Cession 11. In case of Cession the Ordinary is to give Notice to the Patron otherwise the Lapse doth not incurr against him 12. In what case the former Benefice is not void by Cession notwithstanding the taking of another Incompatible and without Dispensation And in what case a Church void is held Void as to all persons except an Vsurper 13. In case of Three Grantees of the Next Avoidance whether Two of them may Present the Third being a Clerk 14. What difference between an Avoidance by Parliament and an Avoidance at the Ecclesiastical Law 15. In what case an Advowson granted to a man shall enure to him only for his life and not go to his Executors 16. A man having an Advowson in Fee of the Church whereof himself is Incumbent Deviseth that his Executors should next Present Whether such Devise of the Next Avoidance be good 17. A grant of a Next Avoidance to one is not after grantable by the same Grantor to another 18. Whether the Greating of an Incumbent a Bishop in Ireland be a sufficient cause of Avoidance 19. Where a Next Avoidance is granted to Two whereof the one Release to the other that Other may after bring a Quare Impedit in his own Name 20. If one Grantee of the Next Avoidance Present the other Grantee of the same Avoidance whether such Grant be void or not 1. AVoidance is when a Benefice or other Ecclesiastical Living is void of a lawful Incumbent which generally may be said to be Twofold either in Fact and in deed as when the Incumbent is dead or actually deprived or in Law as when the same person or Parson hath more Benefices than one Incompatible having no Dispensation nor qualified for Plurality Or an Avoidance is either Temporal or Spiritual 1 Temporal as by death of the Incumbent 2 Spiritual as by Resignation Deprivation Creation Cession The Temporal is an Avoidance de facto the Spiritual is an Avoidance de jure Of this latter or Spiritual Avoidance the Ecclesiastical Court takes cognizance and determines and therefore the Supream Head may so dispense there that such Avoidance in Law shall never come to be an Avoidance in Deed and of this Avoidance in Law no Title accrues to the Patron unless something be thereupon done by the Ecclesiastical Court as a Declaratory Sentence or such like But upon Avoidance in Deed Presentment accrueth to the Patron presently Anciently when a Bishop was also the Parson of any Benefice either in right of his Bishoprick or that the Benefice was annexed to his See for the provision of his Table or the better maintenance of Hospitality the Fruits of such Benefice or Parsonage during every vacancy or Avoidance of such Bishoprick where the Bishop was both Lord of a Mannor and Parson of a Parsonage thereto annexed did not come to the King as they now do whereby the Parsonage and Mannor are both consolidated into one being now both holden to be Temporalties but the Parsonage came to the Archbishop of the Province as a Spiritualty granted to his See by Priviledge during the vacancy of the Sees of such Bishops as were in his Province as may appear by the Records of the Lord Archbishop of Canterbury Ex Registro Archi-episc Cant. Ridl View cap. 6. Sect. 1. 2. There is in operation of Law a wide difference between Avoidance and Next Avoidance the former is in esse the other is only in passe the former is the want of an Incumbent upon a Benefice de praesenti the other is the Grant of a supply of that want de futuro and is the Grant of a Next Avoidance in a Parsonage or other Spiritual promotion which is Grantable whiles there is an Incumbent actually in being and is in the nature of a thing in Action and therefore will not pass without Deed. But a present Avoidance though it be not meerly a thing in Action yet it is not Grantable in that kind as the other The present Avoidance is not valuable and therefore shall not be Assets it may be otherwise with a Next Avoidance in some Cases for the Next Avoidance is but a Chattel the Grant whereof is not good without Deed For an Advowson or the Patron 's Right of Presentation to a Church is not a Spiritual but a Temporal Inheritance grantable by Deed and if Appendant as the Mannor it self to which it is Appendant as an Accessory to its Principal 3. The Cognizance of Voidance of Benefices is Ecclesiastical by the Statute 25 Ed. 3. cap. 8. it being the want of an Incumbent on a Benefice as aforesaid and is opposed to Plenarty This Voidance may be either by Death Deprivation Law or Act of Parliament Cession or Plurality Resignation Creation Incapacity Union Non-payment of Tenths c. So that a Voidance may happen to be such either in Law or in deed virtually or actually Resignation is Juris proprii spontanea Refutatio or the voluntary yielding up of the Incumbent into the hands of the Ordinary his interest and right which he hath in his Benefice Touching the Form of Resignation and Protestation which must be when the party will Resign vid. Regist fo 302. F. N. B. fo 273. and this Resignation which is one of the causes of Avoidance is to be made to the Ordinary for it is a Rule in the Canon Law Apud eum debet fieri Renunciatio apud quem pertinere dignoscitur Confirmatio The Next Avoidance is only a Power legally granted to another by the right Patron to Present a Clerk to the Church when it shall next become void And during such Voidance of a Parsonage the Franktenement of the Glebe thereof is said so be in no man but is said to be in Abeyance that is only in the remembrance intendment and consideration of the Law that though for the present during the time of such Vacancy it be not actually in any person yet it is by way of Abeyance in hope and expectation belonging to such one as shall next enjoy the same The word Avoidance hath Two significations in the Law the one and that here intended is when a Benefice or any Ecclesiastical Living becomes Void of an Incumbent the other may be that which is understood by what we intend in Pleadings in Chancery when we say Confessed or Avoided Traversed or Denied c. which hath no relation to the matter in hand Likewise after the death of a Bishop or Parson the Freehold is in Abeyance of necessity but the Law will not admit the framing of Abeyances needless and in vain as in Vacations of Bishops Parsons or the like
for the avoiding of Leases made by a Parson by his Absence from his Living by the space of eighty daies in one year and also shews that one Stallowe who was Parson of Sharrington to whom these Tithes did belong and in whose Right the Defendant claimed them was Absent from his Parsonage by the space of eighty daies in one year and shews in what year and so by this his interest determined and Agreement with the Plaintiff by this made void but they found further as the Plaintiff made it to appear That Stallowe the Parson of Sharrington was not Absent in manner as it was alledged for that they found that he did dwell in another Town adjoyning but that he came constantly to his Parish-Church and there read Divine Service and so went away again They did also find hat he had a Parsonage-house in Sharrington fit for his habitation and whether this were an Absence within the Statute as to avoid his Lease they left that to the Judgment of the Court Yelverton Justice This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case that he was Absent for he came four daies in every week and in his Parish-Church did read Divine Service Williams Justice upon the Statute of 13 and 14 Eliz the Parson ought not to be Absent from his Church eighty daies together in one year à Rectoria sua but this is not so here for he came to his Church and read Divine Service there every Sunday Wednesday Friday and Saturday and therefore clearly this cannot be such an Absence within the scope and intention of these Statutes as thereby to avoid his Lease Yelverton Justice he ought to be Absent eighty daies together per spatium de Octogin diebus ultra and this to be altogether at one time and so the same ought to have been laid expresly the which is not so done here for that it appears here that he was at his Parsonage-house and did read Prayers every Sunday Wednesday Friday and Saturday and so the whole Court were clear of Opinion that this Absence here as the same appeared to be was not such an Absence by the space of eighty daies in one year to avoid his Lease within the said Statute and so the Defendants Plea in Barr not good and therefore by the Rule of the Court Judgment was entered for the Plaintiff 17. An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency and against the other for taking of a Farm the one of them pleaded Sickness and that by the Advice of his Physicians he removed into better Air for Recovery of his health and this is justifiable by the whole Court vid. more for this Coke 6. par fo 21. in Butler and Goodall's Case The other pleaded That he took the Farm for the maintenance of his House and Family And this also is justifiable by the Opinion of the whole Court Crooke moved the Court for the Defendants That the Plaintiff was a Common Informer and that he did prefer this Information against them only for their vexation and so to draw them to compound with him as formerly he hath so done by others for which they prosecuted an Indictment in the Countrey upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses The whole Court did advise them to prosecute this Indictment against him Crooke moved for the Defendants That in regard the Informer is a man of no means that the Court would order him to put in sufficient Sureties to answer Costs if the matter went against him and that then the Defendants would presently answer the Information Williams Justice nullam habemus talem legem this is not to be done but the Rule of the Court was That the Defendants should not answer the Information until the Informer appeared in person 18. In an Action of Covenant the Plaintiff in his Declaration sets forth that the Defendant was Parson of D. and did Covenant That the Plaintiff should have his Tithes of certain Lands for thirteen years and that afterwards he Resigned and another Parson Inducted by which means he was ousted of his Tithes and for this cause the Action brought The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency upon which Plea the Plaintiff demurr'd in Law It was urged for the Plaintiff That the Plea in Barr was not good because it is not averred that the Defendant had been Absent from his Parsonage by the space of Eighty daies in a year for otherwise the Covenant is not void by the Statutes For the Defendant it was alledged That the pleading of the Statute of 13 Eliz. is idle but by the Statute of 14 Eliz. this Covenant is made void for by the Statute all Covenants shall be all one with Leases made by such Parsons And in this case if this had been a Lease this had been clearly void by Surrender of the Parson and so in case of a Covenant Doderidge and Houghton Justices The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law nor intended to make any Leases void which were void at the Common Law and therefore this Covenant here is not made void by the Statute unless he be Absent Eighty daies from his Parsonage Coke Chief Justice agreed with them herein They all agreed in this Case for the Plaintiff and that by the Preamble of 14 Eliz. it is shewed the intent of the Statute to be to make Covenants void within the Provision of 13 Eliz. by Absence for Eighty daies And Judgment in this Case was given for the Plaintiff CHAP. XXIX Of Abbots and Abbies also of Chauntries and of the Court of Augmentations 1. Abbot what why so called the several kinds thereof and how many anciently in England 2. A famous Abbot anciently in Ireland The manner of their Election prescribed by the Emperour Justinian Anciently the Peers of France were frequently Abbots 3. The ancient Law of King Knute concerning Abbots 4. The Abbot with the Monks making a Covent were a Corporation 5. Abbots were either Elective or Presentative they were Lords of Parliament How many Abbies in England and which the most Ancient Founded by King Ethelbert 6. Chaunter and Chauntries what and whence so called their use and end 47 belonging anciently to St. Pauls in London when and by what Laws their Revenues were vested in the Crown 7. Before King John's time Abbots and Priors were Presentative afterwards Elective 8. Six Differences taken and Resolved in a Case at Law touching Chauntries 9. Certain Cases in Law touching Lands whether under pretence of Chauntries given by the Statute to the King or not 10. What the Court of Augmentations was the end
and use thereof when Erected how Established and by whom Dissolved 1. ABba and Abbas have one and the same signification therefore Abbots are called Patres c. ult de Regular Tuseh Concl. 3. nu 7. It is either an Hebrew or Syriack word signifying Pater with the Greeks and Latins from the two first Hebrew Elements or Letters Aleph and Beth inverted which Name the Monks first assumed at their Original in Syria and Egypt And although now in this Kingdom we know no more of this word Abbot than the very Name thereof yet for his Antiquities sake he hath the Alphabetical precedence in the Index of this Abridgment whether he be Archimandrita Novel Const 115. or Coenobiarcha or Archimonachus Hottom in ver Feuda Marsil colum de Eccles redit c. 15. nu 5 6. whether Miter'd and thereby exempt from the Diocesan's Jurisdiction as having within their own Precincts Episcopal Authority in themselves and being Lords in Parliament whence called Abbots Sovereign 9 R. 2. c. 4. Or not Miter'd but subject to the Diocesan in all Spiritual Government c. Monasteria 18. q. 2. c. Abbas c. Visitandi cum 4. seq ibid. Omnes 16. q. 7. c. cum Venerabilis Extra de Relig. Dom. vid. Stow. Ann. p. 442. So called Abbas because he is Pater Monachorum Januen in suo Cathol glo Jo. Andr. de Rescript c. 1. verb. Abbates in Clem Coke de Jure Ecclesiast fo 28. and hath the chief government of a Religious House and who with the Monks makes a Covent of these Abbots together with two or three Priors there were heretofore in England about the number of Thirty in all What Consecration is to a Bishop that Benediction is to an Abbot but in divers respects for a Bishop is not properly such until Consecration but an Abbot being Elected and Confirmed is properly such before Benediction cap. de Suppl negl Prael lib. 1. 10. Clem. § Statuimus de Stat. Monach. in Clem. cap. Meminimus de Accusat 2. The Venerable Mr. Bede speaks of an Island in Ireland which ever had an Abbot vested with such power and authority that every Province yea and the Bishops themselves were under his Government and subject to his Jurisdiction Beda lib. 3. de Gestis cap. 3. Spelm. de Prim. Eccles Angl-Sax An. 603. The Emperour Justinian in the First Book of his Codes hath expresly ordained and prescribed the manner and form of the Election and Confirmation of an Abbot and what persons they ought to be and how qualified that shall be accounted worthy of that Ecclesiastical Dignity C. l. 1. tit 3. l. 47. l. 40. De Episc Cler. Novel 5. cap. 9. Novel 123. c. 34. Mr. Blount in his Nomo-Lexicon takes notice of the word Abbacy and saies it is the same to an Abbot as Bishoprick is a Bishop resembling it to the word Paternity and a very Ancient Record wherein that word is used An. 34 35 H. 8. c. 17 18. Sciant .... quod Ego Isabella Comitiss Penb. pro Salute Animae meae Dedi Deo Abbathiae de Nutteleg totam Wicham juxta dictam Abbathiam c. In these latter Ages the Abbots through the savour of Princes and their respect to the Church have been reputed as Peers and Secular Lords to whom the granted the Provenues of Abbacies proportionable to such Dignity for the support thereof Thus many of the Peers of France have very anciently and frequently been Abbots as appears by Paradine who wrote the Annals of Burgundy nigh Seven hundred years since and then affirmed that he had seen very Ancient Records wherein the Peers of France used these styles and distinctions viz. Duke and Abbot Earl and Abbot c. Guil. Paradin Annal. Burgund lib. 2. sub An. 1103. Prat. 3. Notwithstanding the ill opinion which in these daies not without cause is conceived of the Ancient Abbies yet it cannot without some breach of charity be well supposed but that such Houses commonly called Religious were in the primitive and true intent thereof better purposed by the Founders than after practised by their Inhabitants for by the Law made in the daies of K. Knute nu 6. i is evident what strict Devotion and blameless Conversation the Ancient Princes of this Realm expected from such as then possessed these Abbies The Law was this viz. We will that Gods Ministers the Bishops Abbots c. do in a special manner take a right course and live according to Rule that they call to Christ night and day much and oft and that they do it earnestly And we Command them that they hearken to God and love Chastity Full truly they wit that it is against the Right to meddle with Women for Lusts sake Annot. Ridl View c. cap. 4. Sect. 1. Whereby it seems these Spiritual Fathers were suspected of old to incline to the Flesh all daies of the week An Abbot might be Presented to a Church for he was capable of an Appropriation whereby he was perpetual Parson Imparsonee and had Curam Animarum 34 H. 6. 15. 4. The Abbot or the chief Head of Abbies being together with the Monks of the same House a Covent made a Corporation and was not by the Common Law further charged with his Predecessors Acts than for such things as were for the use of the House or such Acts as were done under the Common-Seal thereof And albeit a Creditor had a Specialty against a Monk yet not the Abbot but the Monk's Executors were chargeable for his Debt contracted before his entry into Religion unless it were for some such thing as came to the use of his House 5. Of these Abbots some were Elective others Presentative and under this Title were comprehended other Corporations Spiritual as Prior and his Covent Friers Canons and such like And as there were Lord-Abbots so there were also Lord-Priors who had exempt Jurisdiction and were Lords of Parliament Co. de Jur. Ecclesiast fo 28. a. It is supposed that the Abbot of St. Austins in Canterbury was the Ancientest of any in this Kigdom Founded by King Ethelbert in An. 602. And next to him in Antiquity the Abbot of Westminster Founded by Seabert King of the West-Saxons An. 604. Some difference there is among Authors touching their Number in this Realm whereof some reckon but Twenty six Sir Edw. Coke says they were Twenty seven Abbots and Two Priors But a very Modern Writer gives us a Catalogue of no less than Thirty three Abbots and Priors whereof some were Priors Alieâ—s born in France Governours of Religious Houses erected for Foreigners here in England suppressed by Henry the Fifth after his Conquests in France and their Revenues after given by Henry the Sixth to other Monasteries and Houses of Learning specially for the crecting of Kings Colledge in Cambridge and Eaton Stow Annals p. 582. 1 H. 5. c. 7. 6. Chaunter Cantator A Singer in the Quire At St. Davids
with the Parson for his Tithes for one year and it may be without Deed by Brownlowe That a Prohibition shall be awarded and that there are divers Presidents in this Court But otherwise if it be for more years it is not good without Deed And in Skinner's Case it was Ruled by the Court upon a Surmize to have a Prohibition That if it be proved before one of the Judges within the Six months although that it be not Recorded till after the Six months yet it is well enough and good also although that the Proof be in the Vacation Pasch 43 Eliz. B. R. Pottenger against Johnson 62. A Parson preferrs his Bill for Tithes of Hasle Holly Willow Whitethorn c. a Prohibition was moved because they were of 21 years growth and more And by the common Custome in Hampshire they were used for Timber to build and repair their Ploughs and cited Pasch 14 Jac. C. B. Rot. 1918. Cufflye's Case against the Parson for Holly Willows and Maple and a Prohibition was awarded And Hubbard said That in Cumberland Beech was used for Timber and the use of the Countrey for scarcity of other Trees will alter the Case The Parson Libels for Tithes of Hay c. The Parson said that the Custome of the Parish hath been That he that hath Corn within the Parish ought to reap the Corn and also the Tithes of the Parson and to make them into Cocks and to preserve them until the Parson shall carry them away And a Prohibition was granted for although that the Parishioners ought de jure to reap the Corn as it was agreed Trin. 28 Eliz. B. R. yet he is not bound to guard the Tithes of the Parson c. But if the Parson does not carry them away in convenient time an Action on the Case lies against him Pasch 20 Jac. B. R. Rot. 286. there such an Action was brought by Wiseman against the Rector of Landen in Essex for not accepting c. of the Tithes of Cheese 63. B. brought an Action upon the Case That P. sued for Tithes and recovered because there was nisi Testis singularis to prove the payment when in truth he had paid it before Two but now one was dead and by the Court Resolved That an Action doth not lie because the Cause was meerly Spiritual And for that it differs from 8 E. 4. 13. for there the Composition was a Temporal Contract although it was for Tithes 64. G. moves for a Prohibition and Surmizes that the Parishioners had Compounded with the Parson for the Tithes but yet the due Tithes were severed and exposed and the Parson takes and carries them away the Parishioner meets him and takes them from him And upon that the Parson sues in the Ecclesiastical Court And a Prohibition was awarded 65. W. Sues P. in the Ecclesiastical Court for not setting out the Tithes of two Acres P. prays a Prohibition because he had set out the Tithes of one Acre in specie and that a party unknown had taken them and for the other he suggests a Modus Decimandi for 2 s. 6 d. And upon that Issue is joyned and the Witnesses said That for a long time as they heard say the Occupiers of that Farm whereof that Acre c. had used to pay annually to the Parson three shillings for all Tithes and agreed by the Court 1 As to the first Quod Prohibitio stet for after the Tithes are severed if a Stranger takes them away the Parson hath his Remedy against him at Common Law and shall not sue the Parishioner in the Spiritual Court. 2 It was agreed That a Proof by hearsay was good enough to maintain the Surmize within the Statute of 2 Ed. 6. But as to the other Acre Popham held That the Modus Decimandi is not well proved but Fenner and Yelverton the contrary For by that appears the Parson is not to have Tithes in specie and for that had not any cause to Sue for them in the Spiritual Court 66. W. Sues P. in the Ecclesiastical Court for Tithes of a Dove-house P. upon suggestion had a Prohibition but he did not prove his Suggestion within the Sixth month W. takes issue upon the Suggâ—stion and it is found against him and yet he prays Costs by the Statute of 2 Ed. 6. for failure of Proof within the Six months But by the Court adjudged that he shall not have it for-â—he hath surceased his time to take advantage of that and he can never have a Consultation Frgo He shall not have double Costs Read the words of the Statute 67. Parson preferrs his Bill for Tithes of Corn and alledges that time out of mind c. in that Parish they have used to allot the Tâ—nth-Shock wherâ—upon the Parishioner suggests That the Parishioners and all those who have Estates c. have used only to set out the Tenth-sheaf for Tithes and had a Prohibition The Parson prays a Consultation but it was denied And Resolved by the Court That the Parson might Sue for a Modus Decimandi in the Ecclesiastical Court 2 R. 3. 3. a. But if the Parishioner deniâ—s that they ought to surcease and a Prohibition lies and that shall be tried at Common Law 68. A. Libels in the Ecclesiastical Court for the Tithes of Pilchards taken in the Sea And now the party had a Prohibition upon a Surmize that the Custome there is That the Fisher-Boat hath one Moity of the Fish and the Fishermen the other moity And that the Owner hath used to pay the Tenth of his Moity in discharge of all c. And it was held by the Court to be a good Surmize for by the Common Law he cannot have the Tithes of Fishes taken in the Sea because it is not within any Parish and then when the Parson by the Custome ought to have the Tithes of them he ought to take them according to the Custome And that the Tenth of the Moity may be a good discharge of the whole And the parties went to issue upon the Custome in Cornwal 69. By the Court Popham being absent it is clear That an Agreement betwixt the Parson and one of the Parishioners that he shall have his own Tithes for years it is good enough without Deed but otherwise if it had been for life And it is a better way to plâ—ad that as an Agreement and not as a Lease 70. A Prohibition for a Suit in the Ecclesiastical Court for Tithes of Rent in London It was held by the Court That by 33 H. 8. cap. 12. the Suit ought to be before the Major of London by complaint in Writing and not by word of mouth only in nature of a Monstrans de droit declaring all the Title And if the Suit be in the Ecclesiastical Court for Tithes in London that Court may grant a Prohibition and yet that Court hath
whole Court of Kings Bench Mich. 5 Jac. and hath many times been Ruled That if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by Word it is not good by the opinion of Flemming Chief Justice because iâ— amounts to a Lease and he held strongly That Tithes cannot be Leased for years without a Deed. 82. Upon the Statute of 2 Ed. 6. cap. 13. â—or Setting out of Tithes in a Prohibition to stay proceedings by a Parson in a Suit in the Ecclesiastical Court against one of his Parish for hindering of him in his way in the Carriage of his Tithes The whole Court agreed in this That if a Parson hath his usual way stop'd that so he cannot come to take away his Tithes being set out for him he may well sue for this in the Ecclesiastical Court and there have his remedy But if the Question be whether the Parson be of right to have a way viz. one way or another this is Triable by the Common Law and not in the Ecclesiastical Court but if the Parson have a certain Way granted to him and set out by the Common Law if he be at any time disturbed or hindered by any of his Parishioners or by any other in the use of this his Way he may then in such case well sue in the Ecclesiastical Court for his remedy And the words of the Statute of 2 Ed. 6. cap. 13. are That if any Parson be disturbed stopped or hindered in the carrying away of his Tithes so that the Tithe comes to be lost hurt or impaired in this case he may sue in the Ecclesiastical Court for his Remedy and upon due proof there made thereof he shall recover double value of the Tithe so taken or lost besides his cost and charges of Suit But because in this principal Case the Parson sued in the Ecclesiastical Court for the Right of his Way whether he was to have that Way or not which belonged properly to the Common Law and not Triable there in the Ecclesiastical Court for this cause the Court granted a Prohibition to stay their proceedings in the Ecclesiastical Court A ABby-Lands were five waies priviledged or discharged of Tithes viz. by Composition Bull or Canon Order Prescription and Unity of possession of Parsonage and Land time out of mind together without payment of Tithes It is supposed that no Land which belonged to Abbots Priors c. is at this day discharged of Tithes but such as came to the Crown by the Statute of 31 H. 8. c. 13. All Monasteries under Two hundred pounds per Aâ— were to be dissolved by the Statute of 27 H. 8. But those of 200 l. per Ann. or upwards not till the 31 of H. 8. The Unity aforesaid or perpetual Unity is where the Abbot Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and also of the Rectory of the Parish in which the Lands lie Which Unity as to a discharge of Tithes must have these four properties 1 It must be Justa as to the Title 2 Perpetua or time out of mind 3 Aequalis that is a Fee-simple both of the Lands and Rectory 4 Libera or Free from the payment of all manner of Tithes whatsoever In a Case where an Abbot held a Pâ—rsonage Impropriate which was discharged of Tithes and had purchased Lands so that the Tithes were suspended in the hands of the Abbot and afterwards the Possessions of the Abbot coming to the King by the Statute of 31 H. 8. The Question was Whether the Lands so purchased by the Abbot before his Surrender to the King were discharged of the Tithes It was the Opinion of Mr. Plowden in that case that they were not discharged for that no Lands were discharged but such as were lawfully discharged by right Composition or other lawful thing and in the said Case the Lands were not discharged in Right but suspended only during the time that they were in the Abbots hands Acorns or Mast of Oak shall pay Tithe for they are of Annual increase as in Lifoâ—d's Case These Acorns or Mast are known in the Law by the word Pannagium so Lindwood Pannagium est pastur Porcorum in Nemoribus Sylvis ut puta de glandibus aliis fructâ—bus arbâ—rum Sylvestrium quarum fructus aliter non solent colligi Lindw de Decim c. Sancta Ecclesia verb. Pannagiis And Mr. Skene de verb Sign defines this to be a Duty given to the King for the pasturage of Swine in his Forrests Also Pannagium is taken for the money which is paid for the Pannage it self as appears by the Statute of Charta de Foresta cap. 90. Vnusque liber homo c. Aftermoath or Second Moath Of this Tithes shall be paid de jure unless there be a Special Prescription of Discharge by paying the Tithes out of the first Moath and then it shall be discharged But if a man pay Tithe-Hay no Tithes ought to be paid dâ— jure afterwards for the pasture of the same Land for the same year for he shall not pay Tithes twice in one year for the same thing for that the After-pasture is but the Reliques of Hay whereof he had paid Tithes before Nor shall Tithes be paid for Agistments in such After-grass In Johnson and Awberie's Case it was Resolved that Tithes are not to be paid for the After-pasture of Land nor for Rakings of Corn And where in Awberies Case Suit was in the Ecclesiastical Court for the Tithe of the After-mowings of Grass anâ— upon a Surmize That the Occupiers of the Land had used to make the first Cutting of the Grass into Cocks for Hay and to pay the Tenth Cock thereof in satisfaction of the First and After-mowings a Prohibition was awarded So that After-grass or After-pasture or Aftermoath do not pay Tithes where they have paid before of the Grass of the same ground the same year save where by Covin to defraud the Parson more Grass is left standing than was wont to be or is there usual Nor is the Herbage of Cattel which eat up that Grass Tithable unless there be some Fraud in the case Notwithstanding the Premisses although the Aftermoath be not Tithable where the Owner at his own costs charges and labour made the first Grass into Hay yet Q. whether it may not be otherwise where the Owner doth no more than cut down the Grass of the first Moath Agistment that is a taking into Grass the Cattel of Strangers within the Parish where the Grass grows this is Tithable and regularly by the Owner or Tenants of the Land not of the Cattel unless the Custome makes it Tithable by the Stranger Heretofore there was not any Tithe paid for this Agistment but now the Law is taken to be otherwise And is
was no Discharge of the Tithes of the Copyhold Lands And in this Case it was also Adjudged That a Farmer of Lands might Prescribe in Modo Decimandi but not in non Decimando The Statute of 31 H. 8. gave all Colledges Dissolved to the Crown in which there is a Clause That the King and his Patentees should hold Discharged of Tithes as the Abbots held Afterwards the Statute of 1 Ed. 6. gave all Colledges to the Crown but there is in it no Clause of the Discharge of Tithes The Parson Libelled in the Ecclesiastical Court and the Farmer of the Lands of the Colledge of Maidstone in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of Opinion That the King had the Lands of the Colledge by the Statute of 1 Ed. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands coming to the King by that Statute whether they should be Discharged of Tithes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Ed. 6. for Discharge of Tithes But it was Resolved by the Justices That Unity without Composition or Prescription was a sufficient Discharge of Tithes by the Statute of 31 H. 8. The Templers were Dissolved and their Possessions and Priviledges by Act of Parliament 17 Ed. 2. transferred to St. Johns of Jerusalem and their Possessions by Act of Parliament 32 H. 8. cap. 24. given to the King It was Resolved That the King and his Patentees should pay Tithes of those Lands although the Lands propriis sumptibus excolantur because the Priviledges to be Discharged of Tithes were proper to Spiritual persons and ceased when the person Spiritual was removed And the Statute of 31 H. 8. of Dissolutions did not extend to such Lands as came to the King by Special Act of Parliament as those Lands of St. Johns of Jerusalem did And Mich. 6. Jac. C. B. in a Case de Modo Decimandi it was said That one may be Discharged of Tithes five waies 1 By the Law of the Realm viz. the Common Law as tithes shall not be paid of Coles Quarries Bricks Tiles c. F. N. B. 53. and Reg. 54. nor of the After-pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2 By the Statutes of the Realm as 31 H. 8. 13. 45. Ed. 3. c. 3 By Priviledge as those of St. Johns of Jerusalem in England the Cistertains Templers c. as appears 10 H. 7. 277. Dyer 4 By Prescription as by Modus Decimandi annual recompence in satisfaction 5 By real Composition By all which it appears that a man may be Discharged of payment of Tithes yet a Lay-man ought not to prescribe in non Decimando albeit the may in modo Decimandi And this in effect agrees with Tho. Aquinas in his Secunda Secundae Quaest 86. art ult vid. Dr. Stu. lib. 2. c. 55. fo 164. And the Causes why the Judges of the Common Law permit not the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Courts is because that if the Recompence which is to be given to the Parson in satisfaction of his Tithes doth not amount to the value of this Tithes in kind they might overthrow the same And that appears by Lindwood Constit Mepham de Decim c. Quoniam propter verb. Consuetudines For this Reason it is said a Prohibition lies and therewith agrees 8 Ed. 4. 14. vid. 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. In a Prohibition upon a Suit in the Ecclesiastical Court by the Defendant the Vicar of D. for Tithes A Prohibition prayed upon his Plea thereof a Modus Decimandi to pay so much yearly to the Parson of Dale in Discharge of his Tithes and the same Plea there disallowed The whole Court agreed that this Modus between him and the Parson will not discharge him from payment of Tithes as to the Vicar and therefore by the Rule of the Court a Consultation was granted Also the Court was of Opinion That where a Bishop holds Lands discharged of Tithes and he makes a Feoffment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest Lands discharges of Tithes and the King grants this Land the Grantee is discharged of Tithes And it is a General Rule That he which may have Tithes may be Discharged of Tithes So long as the Land is occupied by him who hath the Fee-simple which did formerly belong to the Order of Cistertians it shall pay no Tithes but if he lett it for years or life the Tenant shall pay Tithes For anciently there were many large Estates wholly exempted from paying Tithes as Land belonging to the said Cistertian Monks to the Knights Templers and Hospitallers As in the Earl of Clanrickard's Case who Libelled in the Ecclesiastical Court for the Tithes of Hay of a certain Meadow against Dame Denton who pleaded That the Prior of A. was seised of that Meadow as parcel of the Possessions of the Priory and that they held it discharged time out of mind c. whereupon Issue was joyned upon a Prohibition and it was found for the Plaintiff for that the Land was only discharged when it was in the hands of the Priory and not when it was in the hands of their Farmers and they were of the Order of Cistertians whereupon a Consultation was granted And now a new Prohibition was prayed for that in the Ecclesiastical Court they had added to the former Libel when the Statute of 50 Ed. 3. cap. 4. is That whereas a Consultation is duly granted upon a Prohibition that the same Judge may proceed in the same case by virtue of the former Consultation notwithstanding any other Prohibition Provided alwaies that the matter in the Libel of the said cause be not altered enlarged or otherwise changed Dr. Pope Doctor of the Civil Law said That there was not any enlarging or changing in substance of the Libel in question for whereas in the former Libel it was That they had used to pay Tithes time out of mind now in the second Libel is added That although the Prior was discharged yet they viz. the Farmers have paid Tithes for 20 30 or 40 years and time out of mind Montague Ch. Justice said That it seem'd that that was not an alteration but Doderidge and Houghton Justices held That that was an alteration of the Libel for now by that last Libel They could fetch them in for Tithes though they were discharged in the hands of the Abbot and for that the Tithes had been paid for 20 30 or 40 years since the Statute aforesaid the which is a sufficient time to make a Prescription according to the Law of the Civilians they would charge the Land with Tithes in whose soever hands they are when by the Statute it ought to be discharged only in
Decimandi but the same shall continue when the same is made again into Hay And when it is sowed with Corn the Parson shall have Tithen in kind and when the same is Hay the Vicar shall have the Tithes-Hay if he be endowed of Hay And where a Suit was in the Spiritual Court by a Defendant Vicar of A. for Tithes a Prohibition was prayed upon the Plaintiffs Plea there of a Modus Decimandi to pay so much yearly to the Parson of A. in discharge of his Tithes It was the Opinion of the Court That this Modus between him and the Parson will not discharge him from payment of Tithes to the Vicar and therefore the Court granted a Consultation Also if a Prescription be laid to pay a Modus Decimandi to 100 Acres or to several things if there be a failure of one Acre or of one thing it is a failure of the whole Prescription Monasteries under 200 l. per Ann. commonly called the Lesser Monasteries of the Order of Gistertians and Praemonstratenses that were Dissolved and came to the Crown by the Statute of 27 H. 8. were not discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. by which Statute those of 200 l. per Ann. and upwards commonly called the Greater Abbies were Dissolved and whereby it is Enacted That the King and his Patentees having any Monasteries c. or any Mannors Lands c. belonging to them should enjoy the same discharged of the payment of Tithes in as ample manner as the said Abbots c. who were discharged of Tithes either by Bulls Compositions Prescription Order or Unity of Possession And albeit the Lands of the said Lesser Monasteries are not within the benefit of the said Statute of 31 H. 8. to be quit of Tithes yet they ought to enjoy all such Priviledges as are annex'd to the Lands for which reason they shall in whose possession soever they are be exempted from the payment of Tithes by real Compositions and Prescriptions de Modo Decimandi though not by Prescriptions de non Decimando Unity of Possession Order or Popish Bulls in all which Cases the Parsons and Vicars have the advantage by the Dissoltion of all those Monasteries and Abbies which were Dissolved by the Statute of 27 H. 8. For these Lesser Monasteries under 200 l. per An. which were as aforesaid Dissolved by the Statute of 27 H. 8. lost their Priviledge of being discharged of the payment of Tithes Nor did the Priviledge extend to any Lands other than such as they had at the time of the Council of Lateran and only for such time as the same remained in their own possessions and only for such Lands as were in their own manurance It is said in Dickenson's Case against Greenhowe That Monks are not of Evangelical Priesthood viz. capable of Tithes in pernancy but meer Lay-men and cannot prescribe in non Decimando And that Bede saith of them That they are meer Laici and the Monks of the Order of Praemonstratenses were such and therefore they could not Prescribe to be Discharged of Tithes Mortuaries in some place called Coarse-Presents though they are not Tithes yet they were given Pro Recompensatione subtractionis Decimarum Personalium nec non Oblationum Lindw c. Statutum infra c. for which reason they are not here omitted out of this Catalogue of Tithes Mortuaries as Sir Edw. Coke conceives were not anciently due otherwise than by Custome only until they were settled by the Statute of 21 H. 8. cap. 6. whereby it is Enacted That no man dying possessed of Goods under the value of 6 l. 13 s. 4 d. should pay any Mortuary nor any to be paid but in such places where they used so to be and that but one Mortuary nor that but in one place and that where the party deceased had his most constant abode and usual dwelling and habitation after the rate following viz. 3 s. 4 d. where the Deceased had in Moveables his Debts first paid to the value of 6 l. 13 s. 4 d. and under 30 l. at his death 6 s. 8 d. if he died possessed of Moveables to the value of 30 l. and under 40 l. 10 s. if to the value of 40 l. or upwards And none to be paid by any married Woman Child Non-Housekeeper Wayfaring-man or Non-Resident in the place where he died Which Statute provides That accustomed Mortuaries should be paid as formerly whether more or less than is before limited There were also it seems certain Mortuaries which the Prelates anciently paid to the Kings of this Realm A Mortuary is not properly and originally said to be due to an Ecclesiastical Incumbent Parson or Vicar from any but those only of his own Parish to whom he ministreth Spiritual Instruction and hath right to the Tithes Lindwood in his Gloss on c. Statutum ver ut infra de Consuetud discovers the ground or reason of that payment to be this viz. That when through ignorance and sometimes through negligence and unjust detention of Tithes and Oblations the Parishioner was found tardy and faulty c. Ideo statuit Archiepiscopus quod Compensatione sic subtractorum secundum melius Animal defuncti Ecclesiae damno debuit applicari But all this notwithstanding we know the prevalency of Custome to be such that in some places of this Kingdom they are paid to the Incumbents of other Parishes that perform no Ministerial duties at all to the deceased party nor living nor dying And the Statute of 21 H. 8. c. 6. doth nothing at all controll the course but makes the Usage of payment only to be the Law thereof In the Case of a Prohibition because the Defendant sued in the Consistory Court of Chester before the Commissary for a Mortuary after the death of every Priest withi nt the Archdeaconry of Chester the best Horse or Mare his Saddle Bridle Spurs his best Gown his best Signet or Ring his best Hat his best upper Garments under his Gown as to the Bishop de debito consuetudine fore supponitur and recites the Statute of 21 H. 8. concerning Mortuaries The Plaintiff averred that there was no such Custome there and that she had paid a Mortuary to the Parson of B. and that after a Prohibition the Defendant had prosecuted his Suit in the Ecclesiastical Court The Questions were 1 Whether there was a Custome in that place to give such things for Mortuary and this to be a just cause to have Prohibition Mortuaries being only Triable in the Ecclesiastical Court. 2 Whether Consultation shall be granted without answering the Prohibition The Court was divided in Opinions wherefore ordered the Defendant should Plead or Demurr and then the Court would give Judgment upon the Return before them N NAg or Riding Nag if a man keep a Nag or Horse within the Parish only for his Saddle to ride on no Tithes shall be paid of
that Nag or Horse for that it is a Barren Beast not renewing but kept only for Labour and so Adjudged in the Parson of Thimblethorpe's Case where the Case was That a man Leased out certain Lands to another reserving to himself the running of a Nag for his own Riding and after the Lessor was sued in the Ecclesiastical Court for the Tithes of that Nag and a Prohibition was granted by Mountague Crook and Doderidge for that it is a Barren Creature and used only for Riding and although it was urged at the Bar that the Lessee paid him Tithes for all the Herbage but the Court took no advantage of that But Houghton seemed è contra for it seem'd to him That no Barren Cattel should be discharged of Tithes other than such as are used for Husbandry But that was not used for Husbandry Ergo c. And in the Case of a Prohibition between Hampton and Wilde It was Resolved That Tithes shall be paid for Pasturage of a Gelding for his Saddle or if it be sold but not for Horses used only for Labour In a Prohibition the Case was M. the Defendant being Parson of D. did Libel in the Ecclesiastical Court for the Tithes of Sylva Caedua and of the Herbage for depasturing of his Geldings The Plaintiff there shewed that they were his Hackney Geldings which he kept for his pleasure and for himself and his Servants to ride upon being his Saddle Horses and this Plea being there refused for this cause he prayed a Prohibition The whole Court was clear of Opinion That here was good cause for a Prohibition for that these Horses are not Tithable nor any Tithe-Herbage is to be paid for them otherwise it were if they had been Cart-Horses which he had to Till his Ground or for Cattel bought and Fatted to sell again for gain for these he ought to be answerable to the Parson for the Herbage of them but not for the Herbage of his Geldings by him kept and used only for his Pleasure but it was for working Horses for the Cart or Plough or for Fat Cattel bought and and Fatted to sell again of such Cattel allowance is to be made for their Herbage because that a Profit doth come in by them but otherwise it is of Saddle-Horses the whole Court agreed in this and therefore in this Case by the Rule of the Court a Prohibition was granted Nurseries of young Trees and Plants pay Tithes If a man be seised of Land within a Parish which used to pay Tithes and a Nursery be made thereof for young Trees and Plants of divers kinds of Fruit as Apples Pears Plums c. Also of Ash c. and after sell divers of them to Strangers out of the Parish to be transplanted he shall pay Tithes of that Nursery to the Parson for although the young Trees are parcel of the Freehold so long as they continue there yet when they are transplanted they are severed and taken from the Freehold and if that should be permitted without payment of Tithes the Parson might be defeated of the Tithes of all the Land in the Parish by converting them into Nurseries Hill 14 Car. B. R. Gibbs Wiburne Adjudg per Cur. upon a Demurrer and a Consultation granted accordingly Intrat Mich. 14 Car. Rot. 75. Cro. par 3. O OAks beyond 20 years growth that are become dry and rotten and thereby not fit for Timber shall pay no Tithe because they were once priviledged And if Oaks beyond 20 years growth have been used to be Topt and Lopt within every 20 years yet no Tithes shall be paid of these Tops and Branches cut within 20 years growth because their stock is discharged of Tithes Trin. 38 Eliz. B. R. Ram Patteson Mich. 3 Jac. B. Brook Rogers Co. 11. Sampson Worthington 48. B. Adjudg It was also Resolved in Wray and Clenche's Case That small Oaks under twenty years growth apt for Timber in time to come shall not pay Tithes Mores Rep. Likewise Oaks Top'd within the age of 20 years and after the Lop left to grow beyond 20 years no Tithes shall be paid for it is now become Timber Mich. 10 Jac. B. per Coke And Oaks decayed that are not Timber but converted to Firewood shall notwithstanding not pay Tithes More Case 716. Oblations Obventions and Offerings seem to be but one and the same thing and are in a sense something of the nature of Tithes being offered to God and his Church of things Real or Personal Offerings are reckoned amongst Personal Tithes and such as come by labour and industry paid by Servants and others once a year to the Parson or Vicar according to the Custome of the Place or they are to be paid in the place where the party dwells at such four Offering-days as before the Statute of 2 3 Ed. 6. c. 13. within the space of four years then last past had been used for the payment thereof and in default thereof Cro. 3. Abridg. Case 3159. In London Offerings are a Groat a House They are by the Law now in force to be paid as formerly they have been Vid. Stat. 32 H. 8. 7. 27 H. 8. 20. 2 3. Ed. 6. 13. Co. 11. 16. They properly belong to the Parson or Vicar of that Church where they are made Of these some were free and voluntary others by Custome certain and obligatory They were anciently due to the Parson of the Parish that officiated at the Mother-Church or Chappels that had Parochial Rights but if they were paid to other Chappels that had not any Parochial Rights the Chaplains thereof were accountable for the same to the Parson of the Mother-Church Lindw c. de Oblation cap. quia quidam Such Offerings as at this day are due to the Parson or Vicar at Sacraments Marriages Burials or Churching of Women are only such as were confirmed by the Statute of 2 Ed. 6. 13. and payable by the Laws and Customes of this Realm before the making of the said Statute and are Recoverable only in the Ecclesiastical Court Orchard the Soil whereof is sowed with any Grain the Parson may claim the Tithe thereof as well as of the Fruit of the Trees because they are of several kinds and of distinct natures Coke Magn. Chart. 652. P PArk if converted into Tillage shall pay Tithe in kind for a Park is but a Liberty a discharge therefore of the Tithes of a Park is not a discharge of the Tithes of the very Soil which may be converted into Tillage Or if there be a Modus Decimandi of the Park and the Park be disparked and the Land converted into Tillage or Hop-ground or the like in this case though Tithes in kind are not payable yet the Modus shall remain The Case is the same if the Park be disparked by having all the Pales fallen down which in Law is a disparking of the Park Sed Q. For to pay a Buck or a Doe or the
Parson of one Parish having part of his Glebe in another may Prescribe in non Decimando for the same So that a Prescription even de non Decimando as for Ecclesiastical persons their Farmers and Tenants may be good In Nash and Molin's Case it was agreed by the Court That a Spiritual man may Prescribe in Non Decimando Cro. par 1. And as for any other person a Prescription de modo Decimandi that is to pay Money or other things in lieu of Tithes in kind is good and if he can prove it Time out of mind this will discharge him Thus a Prescription to pay 4 d. or any other Sum for all his Tithe whatever or for all his Tithe-Hay or for all his Tithe-Corn in such a Farm or in such a Close or for all his Fruit in such an Orchard is good But a Prescription of paying no Tithe-Corn because he pays Tithe-Hay or of paying no Tithe of his Cattel because he pays Tithe-Corn is no good Prescription Or of not paying of Tithes in one place because he pays in another or of not paying Tithe-Lamb because he pays Tithe-Wool vel è contra or of not paying Tithe for other Cattel because he pays 12 d. for a Cow these and the like are no good Prescriptions Yet a Prescription to pay a less part than a Tenth may be good and binding Also a Prescription to pay a peny called Hearth-peny in satisfaction of Tithe for all Combustible Wood may be good Likewise a Prescription by the Lord of a Mannor to pay six pound in satisfaction of all the Tithe-Corn within the Mannor and to have the Tenth Sheaf or Cock in recompence of his payment is good But if the Prescription be to be discharged of Tithe-Hay of such a ground or Tithe-Corn of such a ground and the Owner change the nature of the Ground as Pasture into Tillage or Tillage into Pasture the Prescription is gone Yet a Prescription is not destroyed by an Alteration of payment as if instead of the money to be paid another sum or Tithes in kind have been paid for 20 years past But a Prescription to have Tithes of Houses according to the Rent is not good for no Tithes are to be paid for Houses in any City save in London only Regularly Prescription referrs to one in private as Custome does to many in publick and where a Prescription de modo Decimandi is denied there a Prohibition will lie to try it at the Common Law otherwise if the Prescription or Custome be agreed If a Prescription by a Parishioner be to pay the Tenth part of Corn as a Modus Decimandi for the Hay also that grows on the Headlands it is not good but such Prescription for the Corn and After-Rakings is good with an averment That they are sparsae minus voluntarie If there be a Prescription of a Modus Decimandi for an Orchard or Garden and it afterwards ceases to be such the Modus shall cease also and Tithe shall be paid in kind but if it afterwards be restored to a Garden or Orchard by being replenished with Herbs or Fruit-Trees it shall pay the Modus as formerly If the Modus be to pay two shillings and the Shoulder of three Deer for a Park the Modus remains though the Park be disparked it is otherwise in case the Modus be only to pay Venison Or if the Prescription be to pay a certain Sum of money for all the Tithes of a Park the Modus shall continue though the Park be afterwards disparked A Prescription of a Modus Decimandi generally for a Park is not good if it be Disparked but it shall be particularly for all Acres contained in the Park Prescription being a Temporal thing is Triable only in the Temporal Courts and therefore in the Case of Two Parsons of Two several Parishes where one of them claimed Tithe within the Parish of the other and said That all his Predecessors Parsons of such a Church viz. of D. had used to have the Tithe of such Lands within the Parish of S. and pleaded the same in the Spiritual Court The Court was of Opinion That in this Case a Prohibition did lie for he claims only a portion of Tithes and that by Prescription and not meerly as Parson or by reason of the Parsonage but by a Collateral cause scil Prescription which is a Temporal cause and thing And in another Case it hath been Adjudged That if a Prescription be laid to pay a Modus Decimandi to 100 Acres or to several things if there be a failure of one Acre or of one thing it is a failure of the whole Prescription But where it hath been Prescribed to pay in one part of the Land the Third part of the Tenth and in another part the Moity of the Tenth for all manner of Tithes it hath been held a good Prescription These Prescriptions de modo Decimandi are equally incident as well to Lay-persons as to persons Spiritual or Ecclesiastical but as to Prescriptions de non Decimando none but Spiritual persons are capable of being discharged of Tithes in that kind as was Resolved in the Bishop of Winchester's Case Yet a whole Countrey or County may Prescribe de non Decimando though this or that particular meer Lay-man cannot nor indeed can the other unless there be sufficient Maintenance for the Clergy besides The Prescriptions de modo Decimandi are confirm'd by Act of Parliament and if any Lay-man will Prescribe de non Decimando to be absolutely discharged from the payment of Tithes without paying any thing else in lieu thereof he must Found it in some Religious or Ecclesiastical person and derive his Title to it by Act of Parliament and it is not sufficient to say That they who Prescribe de non Decimando are Churchwardens who have Land belonging to their Church for they are neither Religious nor Spiritual persons But they who are such indeed may so Prescribe not only for themselves but also for their Tenants and Farmers as was formerly said So also may the Kings Patentees of those Abbey-Lands that came to the Crown by the Statute of 31 H. 8. Prescribe de non Decimando by force of the said Statute if so be it may be proved That they have beyond the Memory of man so enjoyed the Lands discharged from the payment of Tithes But for a Parishioner to Prescribe to Non-payment of Tithes because he hath Time out of mind repaired the Church is no good Prescription otherwise in case he had repaired the Chancel and in consideration thereof had been quit of Tithes the Reason is because the Parson not being obliged to repair the Church hath no recompence And in Sherwood and Winchcombs Case it was Resolved That a man cannot Prescribe to have Tithes as parcel of a Mannor for that they are Spiritual but a
setting forth of Tithes which Action is to be sued in the Temporal Courts Trees of all sorts regularly and generally except Timber-Trees as aforesaid Root and Branch Body Bark and Fruit used or sold by the Owner are Tithable Tithes shall be paid of Hasel Willows Holley Alder and Maple although above twenty years growth Mich. 5. Jac. B. Resolved and Consultation granted accordingly So that Trees of all kinds not apt for Timber though exceeding 20 years growth nor ever cut before may be Tithable And all Trees under the notion of Sylva Caedua aforesaid Underwoods and Coppices felled and preserved to grow again are Tithable to the Parson when the Owner takes his Nine parts But Trees cut only for Mounds Plow-gear Hedging Fencing Fewel for maintenance of the Plough or Pail be it Underwoods of Coppices Parings of Fruit-Trees or the like are not Tithable but Trees bearing Fruit of all sorts are Tithable in their Annual increase And therefore as to Fruit-Trees as Apples Pears c. the Tenth of the Fruit shall be set out and delivered when they are newly gathered for the omission whereof if loss come to the Parson the Owner is chargeable to him in the Treble Dammages If a man pay Tithes for the Fruit of Trees and after cut down the same Trees and make them into Billets and Faggots and sell them he shall not pay Tithes for the Billets or Faggots for that it is not any new Increase Coke Magna Charta 652. 621. If Trees be Fell'd no Tithes shall be paid of the Roots Coke Pasch 29 Eliz. B. R. nor of the young Sprouts that grow of such ancient Stock M. 12 Jac. B. R. Stampe Clinton Roll. Rep. And as Fruit-Trees pay Tithes in their Fruit so also may young Trees which as yet bear no Fruit pay Tithes in another kind for where a Parson Libelled in the Ecclesiastical Court for the Tithes of young Trees planted in a Nursery upon purpose to be rooted up and sold to be planted in other Parishes The Question was Whether Tithes should be paid for them It was said they were of the nature of the Land and Tithes should not be paid of them no more than of the Mines of Coles or Stones digged or for Trees spent in Fewel in the House But it was the Opinion of the whole Court That forasmuch as he made a profit of such young Trees Tithes thereof should be paid when they are digged up and sold into another Parish as well as of Corn and Carret or other things of like nature Note by the Justices If one cut Trees which are or may be Timber although they be under the age of 20 years no Tithes are due and so it is of new Germins growing under that age And where in a Prohibition for that it was Libelled in the Ecclesiastical Court for Tithes of Timber Trees the Defendant said the Trees were long since aridae mortuae putridae It was the Opinion of the Justices That no Tithes should be paid of those Trees for being above the growth of 20 years they were discharged of Tithes Also in Brook and Rogers Case where a Parson sued in the Ecclesiastical Court for the Tithes of the Boughs of Trees above the age of 20 years growth and the Defendant prayed a Prohibition and shewed that the Trees were aridae siccae in culminibus putridae It was held by the better Opinion that Tithes should not be paid of them In an Action upon the Case Declared whereas by the Statute of 45 Ed. 3. cap. 3. Tithes ought not to be paid for Gross Trees That she had cut down such Timber Trees being above the growth of twenty years and that the Defendant as Parson sued her for Tithes of them against the Statute upon which it was Demurred Resolved by the whole Court That the Action did not lie for none shall be punished for Suing in the Ecclesiastical Court for any matter which is properly demandable there although perhaps he hath no cause of Action But if he Sues in the Ecclesiastical Court for matter which appears by his Libel is not Suable there nor the Court hath Jurisdiction thereof there an Action upon the Case lieth Turkeys Tithes shall not be paid of them nor their Eggs quia Ferae naturae Turves used for Fewel or Firing do pay Tithe and are Tithable as Predial Tithes yet held that Tithes shall not be paid thereof Hill 14 Jac. B. R. per Houghton Hill 11 Jac. B. R. per Cur. Tile-Stones or Brick Tile are not Tithable Tythes or Tithes are a Tenth or otherwise a certain part or portion of the Fruit or lawful Increase of the Earth Beasts or Mens Labour and Industry and are payable by every person having things Tithable that cannot shew a Special Exemption either by Composition Custome Prescription Priviledge or some Act of Parliament And they are to be paid without any Diminution for which reason the Owners of things Tithable ought not to have the Nine parts till the Tenth be first severed there-from And on the other side the Tithe is in no case to be taken by the Parson or Vicar before the same be severed from the Nine parts The Parson de mero Jure is to have all the Tithes if there be no Endowment of the Vicarage and a Vicar cannot have Tithes but by Gift Composition or Prescription for that all Tithes de jure do belong to the Parson In Suit for Tithes it is not necessary to demand the very value for the Duty is uncertain Mich. 16 Jac. B. R. Case Pemberton Shelton Roll. Rep. If Tithes be payable by one who dies before he pays it it must be paid by his Executor if he hath Assets But if the Parishioner setteth forth his Tithes and they stand upon the Land two or three daies and afterwards he taketh or carrieth them away this is not a setting forth of his Tithes within the Statute of 2 Ed. 6. But if the Parson or Vicar shall suffer his Tithes being severed to lie long upon the Land to the prejudice of the Owner of the Ground he may have his Action of the Case And whoever taketh away the Tithes not having Right thereto is a Trespasser Also an Action lieth against a Disseisor for the Tithes or if one cut them and another carrieth them away an Action lieth against either of them And although in the Ecclesiastical Courts no Plea is allowed in Discharge of Tithes yet Lands in the hands of Ecclesiastical persons may be Discharged of Tithes and now since the Statute of 31 H. 8. in the hands of the Kings Patentees also by Suspension Priviledge or Unity And since in the Ecclesiastical Courts no Plea as aforesaid is allowed in Discharge it is nothing strange that the Common Law holds that the Court Spiritual hath not Jurisdiction in matters of Tithes where the Prescription is de non Decimando otherwise where it is de
whether sufficient Notice thereof were given or not are examinable only in the Ecclesiastical Court and when the Licence is sufficient and the Provisoes well and duly observed and Notice thereof and This be refused or rejected in the Ecclesiastical Court yet no Prohibition lies but the Party grieved must have his Remedy by way of Appeal and not otherwise 4 That where power is given by Act of Parliament to the Archbishop to grant Licence either de novo or in Confirmation of his Authority yet the form of the Dispensation and the observation of the Provisoes and Conditions thereof and whether sufficient Notice were given or not are examinable in the Ecclesiastical Court and if they there adjudg in that case irregularly no Prohibition lies but the Remedy is only by way of Appeal But if it come into question in the Ecclesiastical Court whether the words of the Act of 25. H. 8. do give sufficient power to the Archbishop to grant a Licence there if the Ecclesiastical Court doth judge against the power a Prohibition lies and not otherwise but if they allow the Licence in point of power and only insist upon the Form and Notice and other Circumstances in such case a Prohibition doth not lie For though a power to grant Licences be by Act of Parliament which is a Temporal thing yet the Licence it self remains an Ecclesiastical thing and the examination of all these things saving the Power remains to the Ecclesiastical Court as it was before CHAP. XXXIIII Of Adultery 1. What Adultery is why so called and in what Court Cognizable 2. The Punishment of Adultery under the Levitical Law and what it was anciently by the Civil Law 3. The several Punishments thereof anciently according to the Quality of the Offenders respectively 4. Adulterers compared to Idolaters strange Punishments of Adultery among the ancient Pagans 5. The Severity of certain Ecclesiastical Laws in ancient times against Adultery 6. The Customs among the Arabians Mahumetans Tartars Indians Pagans in punishing Adulterers 7. The Civil Law touching Jealousie and second Marriage the former Husband then living 8. Adultery what in sensu largo how the punishment thereof is now mitigated at the Civil Law to what it was anciently and how punished at the Canon Law 9. The diversity of punishments inflicted on Adulterers according to the divers Customs of Nations respectively 10. In what respect the Temporal Laws may take some Cognizance of Adultery 11. What the Saxons of old in this Kingdom called the Punishment of Adultery the remarkable Case of Sr. Jo. de Camois 11. Adultery fals under a Threefold Consideration of Law the History of the Adulterous Stork 1. ADULTERY or Adulterium quasi ad alterius thorum where the Rights of lawful Matrimony are violated Lindwood's Const de Offic. Archipresb verb. tertium mandat is the Incontinencie of Married persons or of persons whereof the one at least is under the Conjugal Vow This is properly cognizable within the Ecclesiastical Jurisdiction the Conviction whereof is by Examination and other Legal proof requisite by the Law of the Church which if committed by any of the Clergy duely convicted thereof he was punishable by Imprisonment at the discretion of the Bishop or Ordinary of that Diocess wherein he resides 2. By the Levitical Law Adultery was punished with Death in both Sexes yea Stoned to death By the Civil Law also which cals it the Violating of another mans Bed the Punishment anciently was Death both in the Man and in the woman But afterwards the Punishment was mitigated by that Law as to the Woman she being first whipt and then shut up in a Monasterie but by the Canons other Laws are inflicted 3. At the Synod in Ireland held by St. Patrick and other Bishops an 456. by the 19 th Canon thereof the Adulterers were to be excommunicated At the Council held at Berghamstead by Bertwald Archbishop of Canterbury the Bishop of Hereford and others in the fifth year of Withred King of Kent an 697. several Laws were made against Adultery according to the several qualities and conditions of the Persons offending respectively beside Excommunication against all such if the Adulterer were an Alien he was to depart the Land and to take his Sins and his Estate away with him If a Soldier then to be fin'd five pounds If a Rustick or Countrey Husbandman known in the Law by Paganus then to pay fifty shillings If a Priest then to be inhibited from administring the Sacrament of Baptism 4. Boniface Archbishop of Mentz when he was the Popes Legate in Germany an 745. in his Epistle to AEthelbald King of Mercia compares Adulterers to Idolaters and moreover says that the Greeks and Romans Compar'd Adultery to Blasphemy when committed by or with one of religious Orders and adds that among the Pagans in the time of the old Saxons the very pactice was that if a Virgin Adulterously defil'd her Fathers Family or a Married woman plaid the whore they were enforced to be their own Executioners and by their own hands to reduce themselves by Strangling to dead Corps which being after burnt the Adulterer was hangd over the Ashes thereof and at other times the Adulteresses were by those of their own Sex out of their Zeal to Chastity whipt from Village to Village till they were whipt to death In Antiqua Saxonia ubi nulla est Christi cognitio si Virgo in paterna domo maritata sub Conjuge fuerit adulterata manu propria strangulatam cremant supra fossam sepultae corruptorem suspendunt aut cingulo tenus vestibus abscisis flagellant eam castae matronae cultellis pungunt de Villa in Villam inter se occurrunt novae flagellatrices donec interimant By the Laws of William the Conqueror the Adulterer was to be put to death Si Pater deprehenderit Filiam in Adulterio in domo sua seu in domo Generi sui bene licebit ei oure lege forsan occire occidere Adulterium 5. In the Ecclesiastical Laws of Keneth King of Scots an 840. By the 14 th and 15. Canon thereof it is ordained That he who deflowrs a Virgin shall dye for it unless she desires him for her Husband and that he who Adulterates another mans Wife not dissenting Both shall suffer the severest punishment unless she were under a force in which case she shall be acquitted By the Ecclesiastical Laws of Hoel Dak King of Wales an 940. it was a sufficient cause of Divorce if a Woman did but kiss any other man than her Husband l. 18. Yea she must lose her Dower and all her Rights by that Law and only for a kiss and by the same Law Adultery in the Man was held as a kind of Hostility In the time of the latter Saxons by the Ecclesiastical Laws of King Edmund an 944. Adulterers and Murderers had one and the same punishment and both alike denied Christian Burial After him by the Ecclesiastical Laws
Customs of the place where they are committed Grotius out of Lessius affirms that the Adulterer and Adulteress are not only obliged to indemnifie the innocent party as to all charges of Alimentation of the unlawfully begotten but also to make good what dammage the Legitimate Children may thereby suffer in their Inheritance and whoever doth lessen the Reputation of a Virgin either by force or insinuations shall refund to her as much as she is thereby fallen in value upon the hopes or expectation of her Preferment in Marriage But if by his Sollicitations he hath obtained the use of her body under a promise of Marriage he is obliged to marry her accordingly Grot. de jur bel lib. 2. cap. 17. § 5. Less lib. 11. cap. 10. Dub. 6. 10. Although this Sin of Adultery is properly and of right belonging to the Cognizance of the Ecclesiastical Jurisdiction yet it will not be denied but that as it is an offence against the peace of the Realm for which reason some are of opinion that Avoutry or Bandry is an offence Temporal as well as Spiritual the Justices of the Peace may out of their Sessions require Surety for the good Behaviour of such as offend therein as also of such as by Common Fame are reputed Resorters to houses suspected of maintaining Adultery or Incontinency of such as keep such houses of lewd Women found in such houses of common Whoremongers and common Whores And upon Information given to a Constable that a Man and a Woman be in Adultery or Fornication together or that a Man and woman of evil Fame or Report are gone to a suspected house in the night the Officer may take company with him and if he find them so he may carry them to Prison or before a Justice of Peace to find Sureties for the good Behaviour 11. The Punishment of Adultery is diversified according to the Laws and Customs of several Nations respectively as forementioned and the Penalty thereof with the Saxons of old in this Kingdom was called Lairwite or Lecherwite and Legergeldum from two Saxon words signifying it seems concumbere and mulcta a Fine or Custom of punishing offenders of that kind which Priviledg is said to have belonged anciently to the Lords of some Mannors in reference to their Villains and Tenants And by Statute Law as also by the law of the Land a Wife that clopes and departs from her Husband with an Adulterer and refuses to be reconciled to him loseth or forfeits her Dower or Jointure yea though she departed from him with his own consent to which purpose remarkable is that Case of Sr. John de Camois Son of the Lord Ralph Camois in the time of Ed. the first who of his own voluntary Will gave and demised his own Wife Margaret a Daughter and Heir of John de Gaidesden unto Sr. William Pannell Kt. and together with her gave granted released and Quit-claimed all her Goods and Chattels c. so that neither himself nor any other in his name should ever after make any claim or challenge any interest in the said Margaret or to or in her Goods or Chattels c. Whereupon she demanding her Dower in part of the Lands of Sr. John Camois there happened a Suit at Law wherein she was overthrown by Judgment given That she ought to have no Dower out of his Estate upon the Stat. of Westm 2. Quia recessit à Marito suo in vita sua vixit ut Adultera cum praedicto Gulielmo c. 12. There are of the Church of Rome who hold that Adultery in conjugato cum soluta is minus peccatum quam in conjugata cum soluto the reason they give for it is for that it is far more repugnant to the Law of Nature that one Woman should be joyned to two Men than e contra and suppose that Bigamy in the Patriarchs of old is an impregnable Fortification of that Reason the Feminine Sex will give them but little thanks for this Opinion But leaving them to enjoy the one and the other we hold that This as to the Inquiry and Punishment thereof is properly within the Ecclesiastical Cognizance it being most consonant to Reason that in what Jurisdiction Matrimonial Causes are controvertible in the same should the Violation of Conjugal Rights be discussed to which end as well the Civil as Canon Law though that especially are furnish'd with great variety of Constitutions to obviate all manner of circumstances relating to this Subject Pasch 8. car B. R. Case Matingly vers Martyn It was resolved that the cognizance of all Fornications Adulteries and of persons suspected to live in Adultery doth belong to the Ecclesiastical Court Jones Rep. So then Adulterium being quasi Accessio ad alterius thorum is the violation of anothers Bed whence it is required that either both or one of the Parties be under the Matrimonial Vow for that conjugal circumstance either in the Male or Female is as the causa sine qua non that the luxurious Act falls under the notion of Adultery in distinction from acts of the same kind under other circumstances For the Law holds that it may be committed in a threefold manner either ex parte viri vel feminae vel utriusque alway supposing that one or both are Matrimonializ'd and both living The Penalty of Adultery hath varied according to the Laws and Customs of several Nations and of several Ages in the same Nation as appears by what hath been said on this Subject The punishment of this epidemical evil the very Brutes and meer Animals have given us a president of if credit may be given to such as have made report of the Stork of which Lessius writes out of another Author as being a Creature of strange abhorrency and revenge of Adultery that by the very instinct of Nature the jealous Animal impatient of vindicating his defiled Nest summon'd others of the same Feather to advise in the Case Testifying that in his own time a certain Stork being as it were convicted of Adultery per olfactum masculi sui or the smelling of her Male he conven'd a Flock of other Storks before whom he so prosecuted Nescio qualiter sayes the Author the Indictment against the Female Stork that she was first deplum'd then torn in pieces by the rude Multude of the other Storks as if in a solemn Council they had all unanimosly sentenc'd her to death as an Adulteress If the report seems improbable yet the Moral is very applicable CHAP. XXXV Of Bastards and Bastardy 1. What Bastard signifies the derivation of that word 2. The difference between Bastard and Mulier what Mulier signifies and why so called 3. Bastardy distinguish'd at the Common Law into Special and General Bastardy 4. The Presumptions of Law touching Bastardy in case of the Husbands obsence from his Wife 5. Five Appellations of Bastards for distinctions sake at the Civil Law with respect to the several
the question of Bastardy or Legitimacy ought to be first moved in the Kings Temporal Court and thereon Issue ought to be joyned there and then it ought to be transmitted by the Kings Writ to the Ecclesiastical Court to be examined and tried there and thereupon the Bishop shall make his Certificate to the King's Court to which Certificate being made in due form of Law such credit is given that the whole World shall be bound and stopt thereby But on the other side if any Suit to prove Bastardy or Legitimacy be first commenced in the Ecclesiastical Court before any Question of that matter hath been moved in he Kings Temporal Court in that Case Prohibition lies to restrain such Suit To this purpose was Corbet's Case cited 22 Ed. 4. Fitz. Consultation 6. Sir Robert Corbet had Issue two Sons Robert and Roger Robert the eldest Son being within the age of fourteen years took to Wife Matild with whom he cohabited till he came of full Age and they publickly known and reputed for Husband and Wife yet afterwards Robert the eldest Son doth dismiss the said Matild and she living doth Marry one Lettice and having Issue a Son by the said Lettice dies after his death Lettice doth publish and declare openly that she is the lawful Wife of Robert and that his Son was a Mulier and legitimate Whereupon Roger the younger Son of Sir Robert Corbet doth commence a Suit in the Ecclesiastical Court to reverse the Marriage between Lettice and Robert and to put Lettice to silence c. wherefore Lettice doth purchase a prohibition Whereupon Roger sets forth the whole matter and prays a consultation which was denied him and for this reason chiefly viz. for that the Suit in the Ecclesiastical Court was to Bastardize the Issue between Lettice and Robert and to prove Roger to be Heir to Robert and the Original Action of Bastardy shall not be first moved in the Ecclesiastical Court but in the Temporal Court c. And to make this point yet the more clear two Cases put by Bracton lib. 5. tit de exceptionib c. 6. were remembred 1 B. having Issue of the Body of a Feme-Inheretrix born before Marriage under colour whereof he claimed to be Tenant by the Courtesie but being for that cause barr'd in an Assize brought by him against A. he obtain'd the Popes Bull and by authority thereof commenced his Suit in the Ecclesiastical Court to prove his Issue legitimate quod facere non debuit as Bracton there saith and therefore prohibition was granted to stay the Suit shewing the whole matter Et quod praedictus B. ad deceptionem Curiae nostrae ad infirmandum judicium in curia nostra factum trahit-ipsum A. in placitum coram vobis in Curia Christianitatis authoritate Literarum domini Papae ad praedictum puerum legitimandum c. Et cum non possint Judices aliqui de legitimatione cognoscere nisi fuerit loquela prius in curia nostra incepta per breve ibi Bastardia objecta postea ad Curiam Christianitatis transmissa vobis prohibemus quod in placito illo ulterius non procedatis c. And in the same Chapter Bracton hath the form of another Prohibition which makes the difference before put more evident Rex talibus judicibus c. Ostensum est nobis ex parte A. c. quod in causa successionis haereditatis petitione debet prius moveri placitum in curia nostra cum ibi objecta fuit Bastardia tunc deinde transmitti debet recordum loquelae cognitio Bastardia ad curiam Christianitatis ut ibi ad mandatum nostrum de legitimitate inquiratur quod quidem in hac parte non est observatum Et cum hoc sit manifeste contra Consuetudinem Regni nostri c. vobis prohibemus c. whereby it is very evident that if the Ecclesiastical Court proceed to the examination of Bastardy or Legitimation without direction of the Temporal Court it is to be restrained by a Prohibition 3. As the Ecclesiastical Judge may not enquire of Bastardy or Legitimation without special direction or command of the King so when he hath received the Kings Writ to make such Inquisition he ought not to surcease for any Appeal or Inhibition but ought to proceed until he hath certified it into the Kings Court and this also appears by Bracton in the forecited place c. 14. Cum autem Judex Ecclesiasticus Inquisitionem fecerit non erit ab eo appellandum nec à petente nec à tenente à petente non quia talem Jurisdictionem talem judicem elegit à tenente non qui sic posset causam in infinitum protrahere de judice in judicem usque ad Papam sic posset Papa de Laico feodo indirecte cognoscere See also to this purpose 39 E. 3. 20. a. in a Writ of Dower where Ne unques occouple en loyal Matrimony was pleaded and Issue thereupon joyn'd the Writ issued to the Bishop to certifie who certified that he could do nothing by reason of an Inhibition which came to him out of the Arches This return was held insufficient for it was there said that he ought not to surcease from doing the Kings command by reason of any Inhibition 4. Lastly it was said that the very cause and reason why the Ecclesiastical Judge may not enquire of Legitimation or Bastardy before that he hath received direction or a mandate out of the Kings Temporal Court doth consist in this that the Ecclesiastical Court never hath Jurisdiction or power to intermeddle with Temporal Inheritance directly or indirectly It being observed that Christ himself refused to meddle with a Cause of that nature when upon request made to him Luke 12. Magister dic fratri meo ut dividat mecum haereditatem he answer'd Quis me constituit judicem aut divisorem super vos And therefore in the time of King H. 3. when the usurped Jurisdiction of the Pope was elevated much higher than ever before or since in the Dominions of the King of England Pope Alex. the third having granted a Commission to the Bishops of Winchester and Exon to enquire de Legitima nativitate of one Agatha the Mother of one Robert de Ardenna and if she were found legitimate then to restore to the said Robert the possession of certain Lands whereof he was dispossess'd being informed that the King of England was greatly offended at the said commission he revoked and countermanded it in the point of the restitution of possession knowing and confessing that the establishment of Possessions belonged to the King and not to the Church Which Case is reported in the Canon Law Decretal Antiq. Collect. 1. lib. 4. tit Qui filii sunt legitimi cap. 4. and cap. 7. where in the 4 th Chapt. the Commission and in the seventh Chapt. the revocation or countermand appears in express terms CHAP. XXXVI Of Divorce as also of Alimony 1. What Divorce
is the causes thereof the difference between the Civil and Canon Law touching the proof of impotency frigidity or disability and what manner of proof the Law requires thereof 2. What time of absence in the Husband may cause a Divorce 3. Whether Divorce by reason of Adultery dissolves the Marriage à vinculo or whether the innocent party may remarry altera existente 4. What the Canon in Concilio Arelatense provides in that Case 5. The opinion of some eminent Common Lawyers in this point 6. The different Opinions of Divines and Lawyers and of each among themselves touching this matter 7. The Opinion in summa Hostiens as also of Suarez touching the legality of second Marriage after Divorce 8. The Canon of the Council of Trent concerning Matrimony also the Opinion of some of the Ancient Fathers and a Decree of one of the Popes touching second Marriage after a Divorce 9. Decrees and Histories of great Antiquity relating to this Subject 10. What the Pontifical Law what Justinian what Baldus and what Grotius says in this matter 11. Opinions in this point take their diversification much from the cause of the Divorce as whether ex causa praecedenti vel subsequenti 12. Judgments at the Common Law that a Divorce for Incontinency is only à Thoro mensa non à vinculo 13. What the Law intends by Alimony and what Elopement signifies no Alimony due to her that Elopes 14. In what Cases the Law will allow Alimony or not 15. How the Civil Law provides in that Case of Alimony 16. The Ecclesiastical Court is the proper Court for Alimony 17. Whether the High Commission-Court had power of Alimony or not 18. Prohibition denied to the Husband sued in the Ecclesiastical Court by the Wife for Alimony in causa saevitiae 19. Whether the Ecclesiastical Court may take Bond for Alimony or Imprison for non-payment thereof 1. A Divorce is a Sententence pronounced by an Ecclesiastical Judge whereby a Man and Woman formerly Married to each other are separated and parted The word Divortium or Repudium is often taken promiscuously both for a Total and Perpetual Divorce à vinculo Matrimonii as also for a Partial and Temporal Divorce or Separation à Cohabitatione vel à thoro mensa The causes of this Divorce whereof some are precedent others subsequent to the Marriage are many in the Law Thomas Aquinas reckons up no less than a dozen of them and thinks he hath Poetically compriz'd them all in four Verses viz. Error Conditio Votum Cognitio Crimen Cultus Disparitas Vis. Ordo Ligamen Honestas Si sis Affinis Si forte Coire nequibis Haec Socianda vetant Connubia Facta retractant But the Causes of Divorce in the Law as now commonly practicable may be reduced to these few 1. The Levitical Degrees within which it is prohibited to Marry 2. Precontract And so if a Man Marry one precontracted and have Issue by her it is the Fathers Child until there be a Divorce upon the precontract and then it is Nullius Filius a Bastard 3. Impuberty or Minority And so if two be Married infra annos nubiles and after full age are Divorced for the same the Woman may bring an Assize against the Man for Land given her in Frank-marriage which proves that the Divorce is by that Law from the very Bond of Matrimony 4. Frigidity in the Man or Impotency in the Woman termed Arctitudo in the Law but the word Impotency is promiscuously used in both Sexes for it is said that if after a Man be Divorced for Impotency he take another Wife and have Children by her these shall not be Bastards because a Man may be habilis inhabilis diversis temporibus But in this Case the Civil Law hath made other provision for that Law in causa Frigiditatis requires three years Cohibitation for Trial of the Disability before it doth upon other legal evidence and proof conclude any Married persons either Frigid or Impotent Indeed the Canon Law expects present proof and in case of such Impotency or Frigidity not Accidental but Natural and Incurable concludes that the Matrimony was never a Matrimony The evidence of which Disability depends on the Oaths of able Physicians as also of aged and grave Matrons experienced in such affairs nor is it to be alledged till after a Triennial experience of each other post Matrimonium Consummatum and is a just cause of Divorce for that it frustrates one of the chief ends of Marriage viz. Procreation of Issue if it be sufficiently proved by Inspection of the Body Triennial Cohabitation and the Oaths aforesaid Consil Matrim To. 2. Consil 8. nu 1. And in Cases doubtful whether it did precede the Marriage or not the Law will presume it to antecede the Marriage and consequently nulls it in case it be Natural otherwise both as to the presumption and operation in case it be only Accidental Sanch. lib. 7. disp 103. nu 4. And where the Impotency doth sufficiently Constare to be Perpetual by the Oaths aforesaid upon Inspection there the Triennial probation ceases Vt cum Glossae cap. Fraternitatis De Frigidis Maleficiis Panor nu 11. Pope Sixtus 5 th in his Bull An. 1587. declared that Matrimonia cum spadonibus vel eunychis prorsus eviratis seu utroque testiculo carentibus cum quibuslibet Mulierihus seu defectum praedictum ignorantibus seu scientibus esse semperque fuisse irrita Antonini â—â—ana resolutiones morales Tract 4. Miscelan resol 75. p. 190. 2. There are also other seeming causes of Divorce than what are forementtoned for the Civil and Canon Law do allow of Divorce after a long absence but are not agreed touching the Time of that Absence for in one place it is after Two years Absence in another after Three years in another after Four Cod. lib. 5. tit 1. l. 2. post biennium tit 27. post tres an l. 27. post Quatuor an others hold that the Civil Law requires Five years Absence before there may be a Divorce on that account In the Council of Lateran a Sentence was allowed by the whole Council which was given by a Bishop pronouncing a Divorce for a Woman complaining that her Husband had been absent Ten years giving also leave to the Woman to Marry again In Concil later par 50. cap. 23. But the truth is no absence be it for any time whatever doth properly cause a Divorce in Law Indeed Seven years Absence without any tidings or intelligence of or from the Absent Party will so far operate in Law towards what is equivalent to a Divorce as to indempnifie the Woman from the penalty of Polygamy if in that case she Marry again Also the Canon Law hath decreed that if the Wife refuse to dwell with her Christian Husband he may lawfully leave her Causa 28. q. 1. c. 4. And some of the Imperial Laws allow Homicide Sacriledge Theft Man-stealing c. for
causes of Divorce Cod. lib. 5. tit 17. l. 8. But the Canon Law decrees otherwise In the time of Ed. 1. William de Chadworth was Divorced because he carnally knew the Daughter of his Wife before he Married her Mother The Stat. of 1 Jac. cap. 11. is the first Act of Parliament that was made against Polygamy Polygamia est plurium simul virorum uxorumve connubium The difference between Bigamy or Trigamy c. and Polygamy is Quia Begamus seu Trigamus c. est qui diversis temporibus successive duas seu tres c. uxores habuit Polygamus qui duas vel plures simul duxit uxores And if the Man be above the Age of fourteen which is his Age of Consent and the Woman above the Age of twelve which is her Age of Consent though they be within the Age of twenty one yet they are within the danger of the Stat. of 1 Jac. cap. 11. Co. Inst Par. 3. Cap. 27. vid. Instit par 1. Sect. 104. 3. This matter of Divorce hath often ministred occasion for high debates and altercations touching second Marriages As whether a Divorce by reason of Adultery in either of the Married Parties doth so dissolve the Marriage à vinculo as that it may be lawful for the Innocent Party to Marry again during the others life By the 107 th Canon It is provided that in all Sentences for Divorce security be given and Bonds taken for not Marrying during each others life By enjoyning such security to be given and such Bonds to be taken This seems to be a Penal Canon viz. pecuniarily Penal whoever therefore breaks the Law incurrs the penalty and whoever suffers the penalty doth answer and satisfie the Law which before he had infring'd a penalty expressed or implied provided for in and annexed unto a Law that is in it self prohibitory seems to create some qualification of that legal prohibition Prohibitio vim suam exercere potest per poenam vel expressam vel arbitrariam Et hoc genus Leges Imperfectas vocat Vlpianus quae fieri quid vetant sed factum non rescindunt So Grotius Grot. de jure Bel. Pacis lib. 2. cap. 5. Sect. 16. But to speak a little nigher to the point in hand it is Grotius again in the same place Si Lex humana conjugia inter certas personas contrahi prohibeat non ideo sequitur irritum fore Matrimonium si re ipsa contrabatur sunt enim diversa prohibere irritum quid facere The Laws whether Ecclesiastical or Temporal are not of any private interpretation yet to speak herein only hypothetically if this be interpretative as a penal Canon by vertue of the said Security and Bond then apposit and observable is that which Grotius hath in another place in Casu Legis Paenalis his words are these viz. Rex qui est Auctor Legis ubi Regni ipsius personam auctoritatem sustinet qua talis est potest legem etiam totam tollere quia Legis humanae natura est ut à voluntate humana pendeat non in Origine tantum sed in duratione Sicut autem totam Legem tollere potest ita vinculum ejus circa personam aut factum singulare manente de caetero lege Dei ipsius exemplo Qui Lactantio teste legem cum poneret non utique ademit sibi omnem potestatem sed habet ignoscendi licentiam Imperatori inquit Augustinus Licet revocare sententiam Reum mortis absolvere ipsi ignoscere Causam explicat Quia non est Subjectus Legibus qui habet in potestate Leges ferre Grot. ibid. de Paenis cap. 20. Sect. 24. How farr the power of Princes may extend it self in this matter is not before us But clear it is that all such as acknowledge the Regal Supremacy will withall confess that his Majesty hath more right to dispence with Canons within his own Dominions ex plenitudine potestatis Regalis than was here formerly exercised ex usurpatione potestatis Papalis In all Laws that are both Prohibitory and Penal as they are of the more force by reason of their Prohibitory quality so they seem to abate of that force by reason of the annexed penalty for he that suffers the penalty satisfies the Law though he transgress the Command The Statute of primo Jacobi hath a Proviso or exception to second Marriages by persons legally Divorced no Caitons or Constitutions prevail or are executable in repugnancy to the Kings Prerogative or to the Laws or Statutes of this Realm That Statute of primo Jacobi prohibiting second Marriages during the Life of each other doth not only not extend to persons legally Divorced but as to such it is with an exception limitation or proviso as aforesaid Sir Ed. Coke taking notice hereof in Porters Case reports that that Statute extends only to persons which are Divorced by Sentence in the Spiritual Court And that distinction of Total and Partial Divorce Or that vel à vinculo vel à Mensa Thoro will not it seems satisfie all Judgments some alledging that ubi lex non distinguit nec nos distinguere debemus applying that Rule ad Evangelium also and thence will not be perswaded but that the innocent party in Causa Divortii ob Adulterium may Marry again altera parte existente because though they know it to be otherwise by Text Canonical yet know not where to find it so by Text Scriptural and specially because they find a Proviso in the said Statute of primo Jacobi that the parties Divorced by sentence if he take another Wife or she take another Husband shall not be within the danger of the Statute And that this extends to every manner of Sentence of Divorce and not to any particular cause of Divorce Cajetan though of the Roman Church yet on the 19 th of Matthew saith Intelligo ex hac Domini Jesu Christi lege licitum esse Christiano dimittere uxorem ob fornicationem carnalem ipsius uxoris posse aliam ducere and soon after adds Non solum miror sed stupeo quod Christo clare excipiente causam fornicationis torrens Doctorum non admittat illam Mariti libertatem This Question Whether after Divorce for Fornication it be lawful to Mary again during the Lives of the parties Divorced is at large handled by the learned Doctor Hammond in his Treatise of Divorces where he says that Mat. 19. 9. and Mark 10. 6. are two places of such perspicuity one Cause of Divorce allowed the Christians that great Breach of the Conjugal Vow and whosoever Divorces and Marries again save in that one Case punctually named committeth Adultery that as no Paraphrase can make them more Intelligible So there is but one Question that can reasonably be started in them viz. Whether he that puts away his Wife on this one authentick cause be so perfectly freed from the Conjugal Vow and Bands that
reference to the Cognizance of the Temporal and Spiritual Courts in point of Slander 5. Whether Action lies for calling one Quean 6. Prohibition for suing in the Ecclesiastical Court for words tending to the obstruction of a Marriage 7. Matters determinable at Common Law not Cognizable in the Ecclesiastical Courts 8. Whether these words Thou hast taken a false Oath be Actionable and in what Court 9. Whether Action lies at Common Law for saying Thou art a Whore c. 10. Words of Slander to the â—inderance of Marriage are Actionable at the Common Law 11. Defamatory words Thou art a Bawd and keepest a Bawdy house whether and where Actionable 12. To say A. is a Cuckold and that B. had layen with the Wife of A. is a Defamation suable in the Spiritual Court 13. The Difference as to Cognizance between the words Thou art a Bawd and I will prove thee a Bawd and the words Thou keepest a House of Bawdry 14. To say Thou art a Drunkard or a Drunken Fellow whether such words are suable in the Ecclesiastical Court 15. The words he is a Cuckoldly knave are suable not in the Temporal but in the Ecclesiastical Court 16. Whether the calling of Pimp Common Pimp be Actionable and in what Court 17. Welch Jâ—de expounded to be Welch whore and cognizable in the Ecclesiastical Court 18. Whether the words Quean or Base Quean be Actionable in the Ecclesiastical Court 19. Action in that Court for Scandalizing a Parson 20. Whether Action lies in the Ecclesiastical Court for saying of one that kept a Victualling house that she kept a House of Bawdry 21. Whether the words Thou art a Pander be Actionable at the Common Law 22. Church-wardens presentment of a Feme Covert upon a Common Report for Adultery and Action of Defamation brought in the Ecclesiastical Court thereon 23. Whether Action upon the Case for words lies against an Infant of Seventeen years of age 24. Several other Cases at the Common Law pertinent to this Subject of Defamation what of them cognizable in the Ecclesiastical Court and wherein the Prohibition lies or not 1. DEFAMATION properly so called is the utterance of Reproachful Speeches with intent of raising an ill Fame of the Party so reproached Defamare est in mala Fama ponere Bart. l. turpia ff de Legat. 3. This extends it self to Writing as by defamatory Libels as also to Deeds as by Reproachful Postures Signs and Gestures Lindw c. authoritate verb. quacunque in gloss de Sent. Excommunicat And as for the most part it proceeds of malice implying matters either of Crime or Defect so it generally aims at some prejudice or dammage to the Party defamed Whatever Cognizance the Temporal Laws of this Realm do take of Defamations by vertue of Prohibitions and Actions upon the Case yet it will not be denied but that the Cognizance of Defamations where they are duly prosecuted doth properly belong to the Spiritual Law specially where the matter of the Defamation is only Ecclesiastical 2. In all causes of Defamation the Party defamed had his Election by the Civil Law whether he would prosecute the Defamer ad Vindictam publicam or ad privatum interesse the former whereof was made choice of where the Defamed aimed more at the Defamers shame than his own Interest and chose rather to reduce him to a Recantation than augment his Cash by his own Credit 's diminution l. in constitutionib § ult ff L. Cornel. The other viz. ad privatum interesse was chosen by such Defamed ones as valued their Credit at a certain Rate and chose rather a Pecuniary Compensation than an unprofitable Recantation aiming more at their own private satisfaction than at the Defamers publick Disgrace l. stipulationum § plane ff de verbor obligat l. si quis ab alio ff de re judic But both of these the Defamed could not have for having determined his Election he was therewith to rest satisfied only having obtained a Sentence against the Defamer for his Recantation or publick Disgrace by prosecuting him ad publicam vindictam he might possibly have in Lieu thereof a pecuniary Recompence by way of Commutation The Prosecution ad publicam vindictam was left to the determination of the Ecclesiastical Jurisdiction the other to the Cognizance of the Secular Much in conformity to what the Laws of this Realm in Cases of Defamation seem to say viz. where the Prosecution is meerly for the Punishment of Sin and Money not demanded there the Spiritual Court shall have the Cognizance But where Money is demanded in satisfaction of the Wrong there the Temporal specially if the Defamer undertake to justifie the matter or the words express or imply a Crime belonging to the Cognizance of the Common Law These Actions of Defamation are of a higher Nature than they seem primo intuitu to be a mans good Name being Equilibrious with his Life and therefore the Law calls them Actiones praejudiciales that is such as draw lesser Causes to them but themselves are drawn of none 3. One Libelled against another in the Ecclesiastical Court for saying That he was a Drunkad or a Drunken Fellow and an addle Drunken Fellow and by the opinion of the whole Court a Prohibition was granted and for such words a Prohibition was granted in C. B. in the Case of Martin Calthorp 4. One moved at the Barr for a Prohibition to the Ecclesiastical Court on a Suit there depending for calling one Bawd Jones Justice conceived that these Differences ought to be observed where a Man calls a Woman Whore or such like Slander for which Suit lies in the Ecclesiastical Court against the Party if the matter appear in that Case Suit lies for Slander there and no Prohibition lies è contra if a man be called Thief Traytor or the like whereon no Suit lies for the Principal in the Ecclesiastical Court but at the Common Law if one be sued for such Slander in the Ecclesiastical Court a Prohibition lies If a man call one Bawd for which Suit lies at the Spiritual Court and also at the Common Law there if the Suit be for Slander in the Ecclesiastical Court in that case no Prohibition lies for the Party hath Election to sue in which Court she please So if a Woman be Slandered in her Reputation whereby she is hindered in her Marriage she may sue either at the Common Law or in the Spiritual Court for Slander And lastly if a man speak any words for which no Suit lies at Common Law nor are such as concern any thing whereof the Ecclesiastical Court takes Cognizance it seems that in such Case if Suit be in the Spiritual Court for Slander as for Convitia a Prohibition lies as for calling one Knave Drunkard or the like Quaere of that the Chief Justice agreed to that the others said nothing therein 5. A Suit was commenced in the Ecclesiastical Court where the Lilbel was that he called the Plaintiff
Court had not any Cognizance of 23. Note upon evidence to the Jury Resolved by the Court that an Action upon the Case for words lies against an Infant of Seventeen years of age For malitia supplet aetatem And it is said at the Common Law that if a Man Libel in the Ecclesiastical Court against one for saying certain words of him which he will maintain in an Action upon the Case at Common Law a Prohibition lies 24. If a Man Libels in the Ecclesiastical Court against one for saying that he is a Witch or the Son of a Witch although no Action lies for that at the Common Law yet no Prohibition shall be granted for peradventure he may have some Spiritual prejudice thereby if he should be the Son of a Witch as that he cannot be a Priest or the like for it seems all the force of the words consists in the last words they being spoken in the disjunctive If a Parson of a Church call A. B. Drunkard upon which A. B. answers thou lyest if the Parson sue A. B. in the Ecclesiastical Court for giving him the lye a Prohibition lies for that the Cause for which he gave him the lye is not Spiritual but depending on a Temporal thing precedent But if a Man call a Minister Knave he may be sued for that in the Ecclesiastical Court and no Prohibition lies If one Man says of another that he will not hear Sermons made by those who have been made Ministers by Bishops he may be sued for that in the Ecclesiastical Court and no Prohibition shall be granted If a Man says of another that he keeps a Bawdy house and is sued for it in the Ecclesiastical Court although he might have an Action at Common Law yet the Ecclesiastical Law hath a concurrent Jurisdiction in this and the words are mixt for which reason no Prohibition lies And if one says of another that he is a Pander he may be sued in the Ecclesiastical Court for that the signification of that word is well known and sounds to a Spiritual Defamation Or if a Man says to another Thou art a Cuckoldly Knave and for that he and his Wife sue him in the Ecclesiastical Court for a Defamation no Prohibition lies for that these words amount to a Spiritual Defamation viz. that his Wife was incontinent in this Case a Prohibition was denied Husband and Wife were Divorced for Adultery à mensa thoro mutua cohabitatione and as one of the Counsel said de omnibus Matrimonialibus obsequiis but the Counsel of the other party denied that and after the Wife sued in the Ecclesiastical Court a Stranger for Defamation and Sentence there given for her and penance enjoyn'd to the party Defendant and costs of Suit assessed for the Plaintiff and afterwards the Defendant appeals and after the Husband of the Wife releases all Actions and that Suit and all appertaining thereunto and the Defendant pleaded that Release and they remitted back the Suit to the inferiour Court again and now Coventry Recorder of London prayed a Prohibition for that notwithstanding the Divorce they continued Husband and Wife and therefore the Release of the Husband should barr the Wife from having Execution of the Sentence and of the Costs 44 El. In this Court between Steevens Administrator of one Steevens and Totte the Case was That after a Divorce for Adultery of the Husband à Mensa Thoro the Woman sued in the Ecclesiastical Court for a Legacy devised to her by the Testator and the Defendant pleaded a Release thereof from the Husband and thereupon a Prohibition was granted and he shew'd that president in Court but the President did not comprehend the Divorce But Doderidge said he well remembred when that Case was argued and the parlance then was about the Divorce Wentworth it seems that no Prohibition shall be granted Hill 7. Jac. in this Court A Suit was commenced in the Ecclesiastical Court by two Church-wardens and the Defendant there pleaded the Release of one of them and thereupon a Prohibition was here granted and after a consultation was granted for that they shall try that having cognizance of the Principal and in this Case the Release is after the appeal and therefore it may not be pleaded upon the appeal for the Judges in the appeal have no power but to examine the former Sentence and not any collateral matter Coventrie I agree the Case of the Church-wardens for that the Release of one is not any Barr in Law for 38. Elâ—z it was here resolved between Methon and Winns that a gift by the Church-wardens without the Assent of the Sidemen or Vestry is void but it is otherwise here for here the Release of the Husband is sufficient to discharge the Execution of that Sentence the which is all that we demand 10. lâ— 3. such Divorce is not any Barr of Dower The Court seemed to incline that no Prohibition should be granted for that the Wife in such Case may be sued alone without the Husband by the Ecclesiastical Law and this is matter meerly Spiritual viz. Defamation and therefore we have nothing to do therewith and the Release of the Husband shall not discharge the Suit of the Wife which is only to restore her to her Credit and Reputation which was impeached by the other and the Costs of Suit is not for any Dammage but meerly for the Charge of the Suit and therefore the Suit being not discharged the Costs shall remain also and this Case is not like the fore-cited Case of Stephens for the thing for which that Suit was was originally a Legacy due to Husband and Wife and therefore there the Release of the Husband was a good discharge but here was no duty in the Husband originally Ergo c. Curia advisare vult In Palmer and Thorps Case it was resolved that Defamation in the Ecclesiastical Court ought to have three Incidents 1 That the matter be meerly Spiritual and determinable in the Ecclesiastical Court as for calling one Heretick Schismatick Advowterer Fornicator 2 It ought to concern matter meerly Spiritual only for if it concern any thing determinable at common Law the Ecclesiastical Judge shall not have Cognizance of it See for this 22. E. 4. 20 the Abbot of St. Albons Case 3 Though the thing be meerly Spiritual yet he which is defamed cannot sue there for amends or dammages but the Suit there ought to be for punishment of the offender Pro salute animae For this see Articulis cleri Circumspecte agatis and Fitz. 51 52 53. but yet the Plainshall recover Costs there and there if the Defendant to redeem his Penance agree to pay a certain sum the Party may sue for this there and no Prohibition lies in that Case In a Case of Prohibition between M. and M. in the Ecclesiastical Court the Case was a Suit was there for Defamation by the Wife of the
of Pope Julius the Third An. 1551. which had only Three Sessions by reason of Wars happening in Germany At this Second Meeting the French King protested against this Council The Third Meeting whereof was Nine years after the Second it being appointed by Pope Pius the Fourth there having been in this interval since the Second Meeting when Julius the Third was Pope two other Popes viz. Marcellus and Paulus the Fourth At this Third and last Meeting there were Nine Sessions the Last whereof began the Third of December An. 1563. The chief Points treated of at this Council were concerning the Scriptures Original Sin Justification the Sacraments in General Baptism the removing of the Council the Eucharist Repentance Extream Unction Communion of Lay-persons under one kind the Sacrifice of Masse the Sacrament of Order Matrimony Purgatory Worshipping of Reliques Invocation of Saints Worshipping of Images Indulgencies the choice of Meats Fastings and Festivals The History of this Council of Trent is extant Of National Councils there have been many more than what are before mentioned as here in Britain and in Italy Spain France Germany the Eastern and African In Italy it is said that there are to be found 115 such Synods as it were National which go under the Name of Roman Councils But such as are of the most Remark in each of these Countreys and the principal things they determined you may find a touch of and no more in the Learned Bishop Prideaux his Synopsis of Councils in the Eighth Chapter Edit 5. Oxon. 1672. CHAP. XLII Of Excommunication 1. What Excommunication is It is Twofold 2. By what Appellations the Greater and Lesser Excommunication are known and distinguished their respective derivations and significations and the nature of each 3. Ecclesiastical Censures in the general may be Threefold 4. What the Law intends by Excommunication ipso facto 5. What the Excommunicate is not debarr'd of by Law 6. Legal Requisites to the due pronunciation of the Sentence of Excommunication 7. What course the Law takes with an Excommunicate after Forty days so perisisting obstinate 8. The several Causes of Excommunication ipso facto enumerated by Lindwood 9. The Causes of Excommunication ipso facto by the Canons now in force in the Church of England 10. The several Writs at Law touching persons Excommunicate and the Causes to be contained in a Significavit whereon the Excommunication proceeded 11. What the Writs de Excommunicato Deliberando also de Excommunicato Recipiendo do signifie in Law 12. A sufficient and lawful Addition to be in the Significavit and in the Excom Capiend Vid. Sect. 10. 13. Several Statutes touching Persons Excommunicated 14. Excommunication for striking in the Church 15. Whether a Bishop hath Jurisdiction or may Cite a man out of his Diocese 16. What are the Requisites of a Certificate of Excommunication for stay of Actions and how it ought to be qualified 17. A Significavit of Excommunication for not Answering Articles not shewing what they were not good 18. By whom an Excommunication may be Certified and how 19. In what case the Significavit of an Excommunication ought to express one of the Causes mentioned in the Statute 20. Whether a General Pardon doth discharge an Excommunication for Contempt precedent to the Pardon or shall discharge the Costs of Court thereon 21. A man taken upon an Excom Cap. and discharged because the Significavit did not express the party to be Commorant within the Bishops Diocess at the time of the Excommunicat 22. Where a man is twice Excommunicated whether an Absolution for the latter shall purge the first Excommunication 23. Whether a Prohibition lies to the Ecclesiastical Court upon Costs there given not in an Action at the Suit of the party but upon an Information there exhibited 24. What Remedy in Law for a party wrong fully Excommunicated and so remaining Forty daies without suing a Prohibition 25. Whether a Person taken by a Capias de Excom Capiend be Bailable or not And whether the Bishop may take Bond of the Excommunicate to perform Submission for their Absolution 1. EXcommunication commonly termed in the Common Law in the Law-French thereof Excommengement is a Censure of the Church pronounced and inflicted by the Canon or some Ecclesiastical Judge lawfully Constituted whereby the party against whom it is so pronounced is pro tempore deprived of the lawful participation and Communion of the Sacraments And is also sometimes as to Offenders a deprivation of their Communion and sequestration of their persons from the Converse and Society of the Faithful And therefore it is distinguish'd into the Greater and Lesser Excommunication the Greater comprizing as well the latter as the former part of the abovesaid definition or description the Lesser comprizing only the former part thereof de Except c. a nobis Lindw de Cohab. Cler. gl in verb. Sacramenta Excommunicatio quasi extra Communionem For Excommunication is Extra Communionem Ecclesiae separatio vel Censura Ecclesiastica excludens aliquem à Communione Fidelium This Ecclesiastical Censure when it is Just is not by any means to be despised or opposed for Christ himself is the Author thereof Anciently among the Hebrews such persons as were Excommunicated were termed Aposynagogi as being quasi Synagoga exacti and to be shun'd or avoided of all men until they repented That of our Saviour in Matth. 18. 17. Let him be unto thee as an Heathen man and a Publican seems to referr to some such Excommunication the power whereof by way of Judicature being then in the Jewish Sanhedrim or Colledge of Elders 2. This Ecclesiastical Censure when limited or restrained only to the Lesser Excommunication the Theologists will have to be understood by the Greek word Anathema Accursed or Separated and when it extends to the Greater Excommunication then to be understood by the Syriack word Maran-atha or Our Lord cometh Anathema Maran atha Anathema Let him be Accursed quasi Devoted to the Devil and separated from Christ and his Churches Communion Maran-atha Some take this for a Syriack word Others not so well satisfied with that Judgment will have it to be a Chaldee word yet used in the Hebrew and familiarly known among the Greeks Maran-atha viz. Our Lord cometh for Maran is our Lord and atha cometh or rather three words more properly viz. Mara-na-atha Our Lord cometh Being a word used in the greatest Excommunication among the Christians intimating or implying That they summoned the person Excommunicated before the dreadful Tribunal at the last coming of the Son of God or that such as were under this Censure of the Church were given up and reserved to the Lords coming to be judged by him and mean while without Repentance and Absolution are to expect nothing but the Terrible coming of Christ to take Vengeance of them To which that Prophesie of Enoch seems to allude Behold the Lord cometh with Ten thousands of his Saints to execute Judgment upon all
Diocess to which the Court viz. Jones and Whitlock answered That at the Common Law a Bishop cannot Cite a man out of his Diocess And that the Statute of 23 H. 8. inflicts a punishment c. and Whitlock said That a Bishop hath not power of Jurisdiction out of his Diocess but to Absolve him being Excommunicate 2 Upon the Statute of 5 Eliz. cap. 23. because the Case of Defamation is not within the Statute and then the Statute Enacts That it shall be void To which the Court answered That he ought to averr that by way of Plea and so also said the Clerks of the Court That he ought to have Sued a Habeas Corpus and upon Return thereof to Plead But the Plea was admitted de bene esse and the party bailed 16. No Letters of Excommunication are to be received in stay of Actions if they are not under the Seal of the Ordinary for an Excommunication under the Seal of the Commissary is not to be allowed in such case If the principal cause of the Action for which the Excommunication was be not comprized within the Letter of the Certificate it is not to be allowed that so it may appear to the Court that the Ecclesiastical Court had Jurisdiction of the Cause for which he was Excommunicated The Certificate ought to be Vniversis Ecclesiae Filiis or to the Justices of the Court where the Suit is to be stayed Also the Excommunication certified ought to be duly dated that is the Certificate ought to contain the day of the Excommunication A Certificate by the Archdeacon is sufficient by the Custome And upon an Excommunicato Capiendo if it appears that the Excommunication was by an Archdeacon of some certain place it ought also to appear either expresly or by implication in the Certificate that the matter for which the Excommunication was was within his Jurisdiction otherwise it is not good 17. F. being apprehended upon an Excommunicato Capiendo and the Significavit being That he was Excommunicated for not answering Articles and not shewing what they were his discharge was prayed for the Incertainty thereof and per Curiam it is not good and therefore was Bailed Coke 22 E. 4. is That a man was Excommunicated for certain Causes not good and so Co. 5. Arscots Case Schismaticus inveteratus is not good Excommunication nor shall be allowed in the cause of him who Excommunicates him 5 E. 3. quod fuit concessum per Doderidge 18. In Trollops Case it was Resolved That the Official cannot certifie Excommunication for none shall do that but he to whom the Court may write to assoil the party as the Bishop and Chancellor of C. or O. and for that if a Bishop certifie and die before the Return of the Writ it shall not be received but the Successor shall do it and one Bishop shall not certifie an Excommunication made by a Bishop in another Court but a Bishop after Election before Consecration may and so may the Vicar-General if it appears that the Bishop is in Remotis agendis also that the Suit and the Cause are to be expressed in the Certificate that the Temporal Court may judge of the sufficiency and if it be insufficient as if a Bishop certifie an Excommunication made by himself in his own Cause the Court may write to absolve him 19. H. was condemned in the Chancellors Court of Oxford in Costs and had not paid an Excommunicato Capiendo being awarded upon a Significavit returned and delivered here in Court according to the Statute of 5 Eliz. cap. 23. He was Arrested thereupon Resolved The Excommunication was good though the Significavit doth not mention any of these Causes in the Statute but it is for other Causes but if any Capias with Proclamations and Penalties be therein awarded the Penalties be void unâ—ess the Significavit express it to be for one of the Causes mentioned â—n the Statute 20. In another Case where a man was Excommunicated upon a Sentence in the Delegates for Costs in Castigatione Morum 21 Jac. a Capias with Proclamations issued and he being taken Quoad the Excommunicato Capiendo pleads That the Offence and Contempt was pardoned by the General Pardon of 21 Jac. It was Agreed That the Pardon did not discharge the Costs of the party which were taxed before the Pardon It was moved there That as the Costs were not taken away so no more was the Excommunication which is the means to enforce them to be paid But Resolved That this Excommunication before the Pardon is but for a Contempt to the Court and all Contempts in all Courts are discharged by the Pardon wherefore the same was discharged and for the payment of the Costs the party is to have new Process 21. A man was taken upon an Excommunicato Capiendo and the Significavit did not mention That he was Commorant within the Diocess of the Bishop at the time of the Excommunication and for that cause the party was discharged And in an Action where an Excommunication was pleaded in Bar and the Certificate of the Bishop of Landaph shewed of it but did not mention by what Bishop the party was Excommunicated it was for that reason adjudged void 22. Upon a Contract Sentence in the Ecclesiastical Court was That the Defendant should marry the Plaintiff he did not do it for which cause he was Excommunicated The Defendant appealed to the Delegates by whom the Cause was remitted to the Judge à Quo who Sentenced him again where he was also Excommunicated again for non-performance of the Sentence He appealed to the Court of Audience and then had 〈◊〉 He was taken by a Capias Excom upon the first Excommunication upon a Habeas Corpus it was Resolved That the Absolution for the latter had not purged the First Excommunication quia Ecclesia decepta fuit 2 That the Appeal did not suspend the Excommunication although it might suspend the Sentence 23. In Weston and Ridges Case it was Resolved That upon an Information exhibited in the Ecclesiastical Court for laying of violent hands upon a Clerk and Costs there given against the Defendant for which he was Excommunicated for not paying them a Prohibition should issue forth because it was not at the Suit of the party and Costs are not grantable there upon an Information 24 In the Case of Prohibitions it was Resolved Mich. 8 Jac. That if a man be Excommunicated by the Ordinary where he ought not as after a General Pardon c. And the Defendant being negligent doth not sue a Prohibition but remains Excommunicate by Forty daies and upon Certificate in Chancery is taken by the Kings Writ de Excommunicato Capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what Remedy the party hath who is wrongfully Excommunicated to which it was Answered he hath Three Remedies viz. 1
Fees wherewith Churches have been endowed otherwise in possessions of the Church newly purchased by Ecclesiastical persons 10 That such as Abjure the Realm shall be in peace so long as they be in the Church or in the Kings High-way 11 That Religious Houses shall not by compulsion be charged with Pensions resort or Purveyors 12 That a Clerk Excommunicate may be taken by the Kings Writ out of the Parish where he dwells 13 That the examination of the Ability of a Parson presented unto a Benefice of the the Church shall belong unto a Spiritual Judge 14 That the Elections to the Dignities of the Church shall be free without fear of any Temporal power 15 That a Clerk flying into the Church for Felony shall not be compelled to abjure the Realm 16 And lastly That the Priviledge of the Church being demanded in due form by the Ordinary shall not be denied unto the Appealor as to a Clerk confessing Felony before a Temporal Judge 2. In conformity to the premisses there were other Statutes after made in the time of King Ed. 3. whereby it was Enacted 1 That the goods of Spiritual persons should not without their own consents be taken by Purveyors for the King 2 That the King shall not collate or present to any vacant Church Prebend Chappel or other Benefice in anothers Right but within Three years next after the Avoidance 3 That the Temporalties of Archbishops Bishops c. shall not be seized into the Kings hands without a just cause and according to Law 4 That no waste shall be committed on the Temporalties of Bishops during Vacancies and that the Dean and Chapter may if they please take them to Farm 5 And lastly That the Lord Chancellor or Lord Treasurer may during such vacancies demise the Temporalties of Bishopricks to the Dean and Chapter for the Kings use 3. And as there are Articuli Cleri so there are also Articuli Religionis being in all thirty nine Agreed upon at a Convocation of the Church of England Ann. 1562. Ratified by Q. Elizabeth under the Great Seal of England Confirmed and Established by an Act of Parliament with his Majesties Royal Declaration prefixed thereunto Which Act of Parliament requires a Subscription by the Clergy to the said thirty nine Articles the same also being required by the Canons made by the Clergy of England at a Convocation held in London Ann. 1603. and ratified by King James The said Subscription referrs to three Articles 1. That the Kings Majestie under God is the only Supream Governour of the Realm and of all other his Highness Dominions and Countreys c. 2. That the Book of Common Prayer and of Ordaining of Bishops Preists and Deacons containeth nothing in it contrary to the Word of God c. 3. That he alloweth of the said thirty nine Articles of Religion and acknowledgeth them to be agreeable to the Word of God By the Statute of 13. Eliz. 12. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be prosecuted and proceeded against by the Censures of the Church And it is not sufficient that one subscribe to the Thirty Nine Articles of Religion with this Addition so far forth as the same are agreeable to the Word of God For it hath been resolved by Wray Cheif Justice and by all the Judges of England That such subscription is not according to the Statute of 13. Eliz. because the Subscription which the Statute requires must be absolute But this is no other then Conditional 4. The Circumspecte agatis is the Title of a Statute made in the 13 th year of Ed. 1. Ann. D. 1285. prescribing certain Cases to the Judges wherein the Kings Prohibition doth not lie As in Case the Church-yard be left unclosed or the Church it self uncovered the Ordinary may take Cognizance thereof and by that Statute no Prohibition lies in the Case Nor in case a Parson demands his Oblations or the due and accustomed Tythes of his Parishioners nor if one Parson sue another for Tythes great or small so as the fourth part of the Benefice be not demanded nor in case a Parson demand Mortuaries in places where they have been used and accustomed to be paid nor if the Prelate of a Church or a Patron demand of a Parson a Pension due to him nor in the Case of laying violent hands on a Clerk nor in Cases of Defamation where Money is not demanded nor in Case of Perjury In all which Cases the Ecclesiastical Judge hath Cognizance by the said Statute notwithstanding the Kings Prohibition So that the end of that Statute is to acquaint us with certain Cases wherein a Prohibition doth not lie And the Statute of 24 Ed. 1. shews in what Case a Consultation is to be granted And by the Statute of 50. Ed. 3. cap. 4. no Prohibition shall be allowed after a Consultation duely granted provided that the matter of the Libel be not enlarged or otherwise changed CHAP. XLIV Of several Writs at the Common Law pertinent to this Subject 1. What the Writ of Darrein Presentment imports in what case it lies and how it differs from a Quare Impedit 2. Assise de utrum what and why so called 3. Quare Impedit what for and against whom it lies 4. What a Ne admittas imports the use and end thereof 5. In what case the Writ Vi Laica removenda lies 6. What the Writ Indicavit imports and the use thereof 7. What the Writ Advocatione Decimarum signifies 8. Admittendo Clerico what and in what Case issuable 9. The Writ Beneficio primo Ecclesiastico habendo what 10. That Writ Cautione Admittenda and the effect thereof 11. The writ of Clerico infra Sacros ordines constituto non eligendo in Officium What the use or end thereof 12. The Writ Clerico capto per Statutum Mercatorum what 13. What the Writ of Clerico convicto commisso Goalae in defectu Ordinarii deliberando was 14. What the Writ of Annua Pensione was anciently 15. The Writ of Vicario deliberando occasione cujusdam Recognitionis what 16. Three Writs relating to Persons excommunicated 17. Assise of Darrein Presentment brought after a Quare Impedit in the same cause abates 18. Difference of Pleas by an Incumbent in respect of his being in by the Presentment of a stranger and in respect of his being in by the Presentment of the Plaintiff himself 19. Notwithstanding a recovery upon a Quare Impedit the Incumbent continues Incumbent de facto until Presentation by the Recoverer 20. Of what thing a Q. Imp. lies and who shall have it 21. Who may have a Quare Impedit and of what things 22. How and for whom the Writ of Right of Advowson lies 23. What the Writ de jure patronatus and how the Law proceeds thereon 24. The Writ of Spoliation what and where it lies 25. The Writ
The causes thereof p. 206 207. Sect. 2. Where cognizable p. 122. Sect. 21. Whether a Bar to Tithes due before p. 398. Whether the Church be void pending the Appeal from a Sentence of Deprivation p. 314. Sect. 17. Delegates-Court how Constituted p. 117. Sect. 13. Whether they may Excommunicate or grant Letters of Administration p. ibid. Dilapidation what p. 173. Sect. 1 2 3. The remedies in Law against it and how many ways it may happen ibid. Whether it be a sufficient cause of Deprivation p. 175. Sect. 5 9. and p. 315. Sect. 19. Diocess whence that word derived p. 101. Sect. 3. What it properly signifies p. 275. Sect. 8. Discharge of Tithes how many ways it may be p. 398. In what Cases it may be or not p. 358. Sect. 12. p. 368. Sect. 38. Dispensation the true definition thereof p. 112. Sect. 9. By whom Dispensations may be granted and in what Cases p. 107 c. Sect. 8. Anciently had from the Court of Rome ibid. It may be without the word Dispensamus p. 302. Sect. 18. They are grantable by the King qua talis p. 5. Sect. 7. p. 109. Sect. 8. The granting thereof is eminently in the Crown p. 6. Sect. 9. The Archbishop of Canterbury may be Statute grant them ibid. p. 19. Sect. 11. The difference between such granted by the Pope formerly and those granted by the King now p. 293. Sect. 2. In what Case grantable by the Guardian of the Spiritualties p. 40. Sect. 3. What remedy in Law in Case he refuse so to do ibid. Divorce what 493. Sect. 1. The Causes thereof ibid. Whether if for Adultery it dissolves the Marriage à vinculo p. 495. Sect. 3 c. Donative Churches what p. 202. Sect. 16. The Original thereof p. ibid. By whom visitable p. 34. Sect. 18. The Law concerning Donatives p. 262. Sect. 18. How they cease to be such and become Presentative p. 201. Sect. 16. and p. 263. Sect. 21. Whether a Donative in the Kings gift may be with Cure of Souls p. 218. Sect. 23. Dotards whether Tithable p. 405. Doves in a Dove-house what Tithes they pay p. ibid. Druids their Idol-Temples when first abolished in England p. 16. Sect. 4. Drunkard whether actionable to call one so p. 516. Sect. 3. p. 521. Sect. 14. Dubritius Archbishop of Carlegion in Wales p. 17. Sect. 6. Duplex Querela what p. 275. Sect. 8. E. ECclesia whence that word derived p. 136. Sect. 1. Ecclesiastical Laws of England the Antiquity thereof p. 129 c. Sect. 44. Edgar King his Zeal for the Church in his Oration to the Clergy of England p. 97. Sect. 1. Eggs how when and in what Case Tithable p. 405. Election of Bishops how and by whom to be made p. 43. Sect. 2. Eleutherius Pope what style be gave K. Lucius p. 4. Sect. 4. p. 111. s 8. Elopement what it signifies p. 508. Sect. 13. Episcopal Authority derived from the Crown p. 30. Sect. 10. Episcopal Jurisdiction endeavoured to be taken away p. 36 37. Sect. 2. Episcopocide in a Clerk Petty Treason p. 35. Sect. 19. Estovers burnt in a house whether Tithable p. 372. Sect. 46. p. 392. Ethelbert King of Kent by whom Canterbury was given to St. Austin for his See p. 13. Sect. 1. p. 17. Sect. 5. Whether he built St. Pauls Church in London p. 17. Sect. 7. Ethelwolph Son and Successor to Egbert the first sole King of England he was Bishop of Winchester p. 36. Sect. 19. And the first that enriched the Church of England with Tithes p. 348. Sect. 1. Euginus whether he were the first that styled himself Pope the first that consecrated Churches and the first that decreed Godfathers and Godmothers in Baptism p. 49. Sect. 7. Examination when and by whom to be performed p. 270 Sect. 1 3. Excommunication what p. 624. Sect. 1 2. Twofold ibid. What intended by Excommunication ipso facto p. 626. Sect. 4. What the causes in Law of That Excommunication p. 628. Sect. 8. In what manner Excommunication is to be pronounced p. 626. Sect. 6. By whom it is to be certified and how p. 635. Sect. 18. Whether the Ordinary may take Bond of an Excommunicate for his submission in order to absolution p. 637. s 25. whether Excommunication in a Patron be sufficient cause for a Bishop to refuse the Clerk presented by such Patron p. 266. Sect. 32. F. FAculty or Court of Faculties or Faculty Office what p. 107. Sect. 8. The Archbishop of Canterbury impower'd by the Statute to grant Faculties ibid. and p. 19. Sect. 11. The force and efficacy thereof to Commendams or two Benefices p. 107 109 110. Sect. 8. The difference between a Faculty to Take and a Faculty to Retain a Benefice p. 110. Sect. 8. Fallow-grounds whether Tithable p. 405. Fees for Probate of Testaments what due by Statute p. 105 106. Sect. 6. Fâ—nny-Lands drain'd whether they pay Tithes presently p. 406. Ferae naturae Creatures of that kind whether Tithable p. 405. First-fruits by and to whom payable p. 337. Sect. 2. vid. Annates Fith taken in the Sea or in a River Pond or Piscary whether Tithable and how p. 406. and p. 367. Sect. 36. p. 379. Sect. 68. p. 375. Sect. 53. Flamins how many anciently in England p. 16. Sect. 4. Flax what Tithes it pays and when p. 407. Forest-Lands whether Tithable or not and by whom p. 407 408. Not scituate in any Parish to whom the Tithes shall be paid p. 408. Whether Priviledg'd from Tithes whilst in the Kings hands otherwise in the Subjects p. 369. Sect. 41. Whether they are Priviledged from Tithes if in the hands of the Kings Patentee or Grantee p. 399. 401. Fowl taken in what Case Tithable or not p. 408. Fraud in setting forth Tithes whether treble dammages in that Case p. 380. Sect. 72. p. 381. Sect. 76. Freehold f the Church or Chancel in whom it is p. 137. Sect. 3. p. 83. Sect. 4. p. 139. Sect. 5. p. 142. Sect. 9. p. 150. Sect. 22. p. 151. Sect. 25. p. 155. Sect. 38. Frigidity in the Man pleaded by the Woman how the Civil Law proceeds thereon p. 493. Sect. 1. Fruit-Trees what Tithes they pay and when p. 408. Fuise whether Tithable p. ibid. G. GArba or Decima Garbarum what it signifies p. 381. Sect. 78. Gardens how Tithable p. 409. p. 371. Sect. 43. Geoffry Plantaginet Son to King H. 2. was Bishop of Lincolne p. 36. Sect. 19. Glass-windows Painted in the Isle of a Chappel if pulled down whether Actionable p. 138. Sect. 5. Gleab what p. 409. The Law concerning the Tithes thereof ibid. p. 410. Gleab of a Parsonage Impropriate and Leased whether Tithable ibid. p. 368. sect 38. Whether Gleab in Lease pays Tithe p. 362 363. s 26. Whether the Freehold of the Gleab during a Vacancy be in the Patron or not p. 183. s 9. Gleab manured and sowed by an Incumbent that dies before Harvest who shall have the Corn p. 318. s 3. Godfathers
by some particular persons like unto the Reasons of a Chappel of Ease 4. Touching the Reparation of Churches it hath been Ruled That he who hath Land in a Parish though he doth not inhabite there shall yet be chargeable to the Reparation of the Parish-Church but not to the buying of the Ornaments of that Church for that-shall be levied of the Goods of the Parishioners and not of their Lands by Sir Hen. Yelverton and said to be so formerly adjudged And it hath been holden That if two Churches Parochial be united the Reparation shall be several as before And although the Lord of a Mannor may prescribe to a certain Seat or Pew in the Church by having time out of mind maintained and repair'd the same at the proper costs of himself and Ancestors yet as to the Common Seats of the Church it is otherwise in respect of the Common Parishioners As in the Case of Harris against Wiseman against whom Harris had procured a Prohibition Wiseman having Libelled in the Ecclesiastical Court against him for a Seat in the Church which did belong to his House and it was said by Hobart and Winch only present That a man or a Lord of a Mannor who had an Isle or a Seat in the Church c. and he is sued for that in the Spiritual Court he shall have a Prohibition but not every common Parishioner for every common Seat yet in that case a Supersedeas was granted to stay the Prohibition It hath also been held That the Grant of a Seat in a Church to one and his Heirs is not good for the Case of Brabin and Tradum was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Chuch whereupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this Grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the Person but to the House for otherwise when the person goes out of Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabâ—la 5. In the Case of Day against Beddington and others upon a Cross-Bill between the parties for pulling down of painted Glass Pictures and Arms in a Window in an Isle of a Chappel in the Parish of Wellington in Somerset these points in the Case were Resolved 1. If an Inhabitant there and his Ancestors time out of mind c. have used to Repair an Isle in a Church and to sit there with his Family c. and to bury there that makes that Isle proper and peculiar for his Family Otherwise if he had not used to Repair it at his own costs but with the charge of the Parish then the Ordinary may appoint who shall sit there from time to time notwithstanding a use to sit there only to the contrary 2. If any Superstitious Pictures are in a Window of a Church or Isle c. it is not lawful for any to break them c. without License of the Ordinary and if any does to the contrary he shall bind him to his good Behaviour And so it was in Prickett's Case 3. That the Ordinary or Church-warden cannot License a Parishioner to Bury within the Church But it ought to be Licensed by the Parson for the Franktenement is in him only 4. If Coats of Arms are put in a Window or upon a Monument in the Church or Church-yard they may not be broken by the Ordinary Parson or Church-wardens or any other for the Heir shall have his Action upon the Case for that 9 Ed. 4. 14. for they belong to him 30 Ed. 3. 9. b. c. 5. If one be Assaulted in the Church or within a Church-yard he may not beat the other or draw a Weapon although it be in his own defence there for it is a Sanctified place and he may be punished for that by 2 Ed. 6. And so if in any of the King's Courts or within view of the Courts of Justice because a Force in that case is not justifiable though in his own defence 6. For the penalty of Striking or drawing a Weapon in the Church or Church-yard Vid. Stat. 5 Ed. 6. cap. 4. whereby it is enacted That if any person shall by words only quarrel chide or brawl in any Church or Church-yard it shall be lawful for the Ordinary of the place upon proof by two Witnesses to suspend the Lay-Offender ab ingressu Ecclesiae and the Clerk-Offender from the ministration of his Office for such time as to the said Ordinary shall seem meet And if any one shall smite or lay violent hands upon another in any Church or Church-yard in that case ipso facto the Offender shall be deemed Excommunicate But and if any person shall maliciously strike another with any Weapon in any Church or Church yard or to the intent of striking another with the same shall but draw a Weapon in any Church of Church-yard the Offender being thereof duly convicted shall lose one of his Ears if he hath any or in one of his Cheeks with a hot-Iron be burnt and mark'd with the letter F in case he hath no Ears and besides shall stand ipso facto Excommunicated Upon this Statute there was an Indictment against Jasper Colmley and John Colmley of Hoxton in the County of Middlesex for that they Insultum fecerunt upon John Higham Dr. of Physick in Ecclesia de Shoreditch praedicta Et praedict Joh. Higham adtunc c. ibidem in Ecclesia praedict de Shoreditch verbaraverunt vulneraverunt male tractaverunt contra formam Statuti c. Upon this the Grand Jury find Billa vera quoad Jasper Colmley and Ignoramus for John Colmley And hereupon he appeared and pleaded Not guilty and found against him Rolls now moved in an Arrest of Judgment That the Indictment was not good being Fecerunt whereas it is found only Billa vera against one Sed non allocatur because it was exhibited against Two and it is but false Latin Secondly because the Indictment is contra formam Statuti and this Offence is not punishable by the Statute unless that he smote with a Weapon or drew a Weapon in the Church or Church-yard or drew a Weapon to that intent which is not mentioned in the Indictment And by the Second clause in the Statute For smiting or laying violent hands it is Excommunication ipso facto and it is not mentioned here how he struck and thereof the Justices doubted But Jones said That the Indictment is good for Battery at the Common Law But all the other Justices were against him
he may Lawfully Marry some other Woman and some other Man Marry that Divorced Adulterers Wife In Mat. 19. 9. The words are That whosoever shall put away his Wife save for fornication and shall Marry another committeth Adultery and he that shall Marry her that is put away committeth Adultery Which words says that learned Author in Sect. 22. are favourable to the affirmative that it is Lawful for him in that one excepted Case to Marry again The nature of a Divorce among the Jews was the rescinding of the Conjugal Bands and by one supposition common to Jews and Romans viz. That they who were duly Divorced might Marry again So of the Jewish Divorced Wife Deut. 24. 2. 't is expresly said she may Marry another and of the Man this was his only End of putting away his Wife in that place that he might Marry another Accordingly the Form of Divorce in Misna tit Gittin Behold thou art free or at liberty for any Man and this is the Bill of Divorce between me and thee so that it is free for thee to Marry to any Man thou wilt Idem Sect. 27. yet on the other side says that learned Author it may be argued that although in the Mosaical Law Divorce was the rescinding the Conjugal Bands to which it was consequent as long as the Jewish polity lasted that they who were duly Divorced as in the one Case of Fornication might freely Marry again yet in the acceptation of our Christian Courts Divorce appears not to be any more than the solemn Judicial separation from Conjugal Society as that it seems to be rather the freeing the Husband and Wife from the Obligation to mutual conjugal duties than the utter rescinding and dissolving the Bands For if it were so then that Husband and Wife could never come together again without a new Wedlock which was never heard of in the Church that Adultery the efficient cause of Divorce though a breach of the Conjugal Vow is yet no actual dissâ—lution of the Conjugal Bands among us Christians seems probable says Doctor Hammond by these two evidences 1. Because Adultery committed by the Husband dissolves not Marriage which yet it equally should if that fault committed and not the Sentence of Divorce rescinded the Conjugal Band c. In this a difference is observable between us and the Jews for in case of Fornication the Jew expected no Sentence of the Consistory but the Man might put her away give her from himself a Bill of Divorce which was never allowed or practised among Christians 2. Because if this were so if Adultery in the Wife dissolved the bands then the Husband that after the Wifes Adultery continued to live with her Conjugally must be concluded to commit Fornication with her the validity of the bands being it and nothing else which makes Conjugal Society Lawful Accordingly hath the Opinion of the Church been anciently as in Can. Apost 48. If any Laick put away his Wife and Marry another or Marry a Woman which hath been put away by another let him be Excommunicate So likewise at the Council of Arles An. 314. Can. 10. De his qui Conjuges suas in adulterio deprehendunt iidem sunt Adolescentes Fideles prohibentur nubere placuit ut in quantum possit concilium iis detur nè viventibus uxoribus suis licet Adulteris alias accipiant Likewise in the Milevitan Council An. 402. at which St. Augustine was present it is decreed that secundum Evangelicam Apostolicam Doctrinam neque Dimissus ab uxore neq Dimissa à Marito alteri conjungantur sed ita maneant aut sibimet reconcilientur So also in the Codex Can. Eccl. African Can. 102. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That they that are Divorced from Husbands or Wives should remain unmarried And what hath thus been defined by these Canons is evidently received into the Ecclesiastical constitutions of this Church which therefore hath decreed that when Divorces are pronounced Monitio prohibitio fiat ut à partibus ab invicem segregatis caste vivatur nec ad alias Nuptias alterutra vivente convoletur Constit Eccl. An. 1597. upon these Arguments pro con Doctor Hammond in the forecited place doth conceive that the Resolution may be made by these three propositions 1. That by the force of Christs words in all the Evangelists he that Marries again after any kind of Divorce but that one for Fornication doth commit an Vnchristian sin 2. That by force of the Arguments first produced for the interpreting Mark and Luke by Mat. 19. 5. vid. Doctor Hammond of Divorces fol. 452 453. it may be probably concluded that in that one case of Divorce for Fornication the Marriage of the Innocent party shall not be Adulterous 3. That although this be granted yet the words of St. Mark and Luke especially the words of St. Paul 1 Cor. 7. 39. do give such prejudices against Marriages after Divorce indefinitely that the ancient Canons of the Church and the Constitutions of our English reformation have thought fit not to permit such liberty in any kind and therefore that this may be the better observed the decree of separation shall not be pronounced till they that demand it shall give sufficient security that they will do nothing against the Admonition and Prohibition for our Constitution adds Denique quo illud firmius observetur sententia separationis non antea pronunciabitur quam qui eam postulaverint Cautionem Fidejussoriam sufficientem interposuerint se contra monitionem prohibitionem nihil commissuros which if not observed by the Judge he is punishable and the Sentence of Divorce for such defect declared void Constit Eccl. an 1597. Innocent the first Bishop of Rome saith Qui interveniente repudio alii se Matrimonio copularunt in utraque parte Adulteros esse manifestum est c. But the said Judicious Author conceives that of this and the like Testimonies it may be observed that most of them belong not to these Divorces which are in case of Fornication but proportionably to Christ's words in St. Mark to those which according to the Jewish or Imperial Laws were allowed in other Cases than what either Christ or the Primogenial institution of Marriage had allowed of And further saith that it is evident and confessed by all Christians that of These that is the Marriages after such Divorces by the Jewish and Imperial Laws are Adulterous but not so of those other Marriages of the innocent parties after those other Divorces in that one Case of Adultery Yea and some Canons have been made with this Temperament expresly except in the case of Fornication so in the second Canon of the Council of Vannes eos qui relictis uxorihus suis sicut in Evangelio dicitur excepta causa Fornicationis sine Adulterii probatione alias duxerint statuimus c. They that have left their own Wives as it is said in the Gospel except for cause of Fornication and
without proof of Adultery shall have Married others we judge them c. Notwithstanding which the Law tells us of other Cases than that of Adultery or Fornication wherein the Man after a Divorce may re-marry during the Life of the Woman Divorced as in the Case of Arctitude which you may find in Summa Astensi Lib. 8. De Divortio propter impotentiam Tit. 37. fo 233. Si Arctatio alligetur subaudi quamcunque impotentiam Foeminae statim potest Divortium Fieri hoc modo viz. vocabuntur Matronae fide dignae in Nuptiali opere expertae Ar. F. de Ventr inspect l. 1. verb. igitur c. Et si Mulieres asserant eam non posse fieri Naturaliter Matrem tunc statim potest Divortium fieri et dabitur viro Licentia cum alia contrahendi It will not be denied but that in all Cases where the Marriage was ab initio Null there it shall after a legal Divorce be free for either party convolare ad secundas Nuptias altera parte existente which strictly and properly cannot be said to be a second Marriage because precedent to it there was duly and legally none nor therefore can they be properly said to be Divorced Separated or put asunder that never were de jure put together Among the several kinds of these Null Marriages may be computed that which Panormitan speaks of in his Fourth Tract de Sacramentis Resol 201. Foemina says he there si commode non potest aptam se reddere viro impedimentum censendum esse perpetuum Matrimonium declarandum Nullum which holds true vice versa and therefore it is likewise said that Foemina per contractum Matrimonii jus suum tradit viro apto non inepto atque in non aptum nullum transfertur jus The Canon Law is express in prohibiting these second Marriages after a Divorce although Ex causa Fornicationis So Tostatus verb. Matrimonium ubi voluit nullam esse Causam Repudii nisi Fornicationem Et istam non quidem simpliciter ad Dirimendum Matrimonium sed ad tollendam Cohabitationem ut patet Extra de Divort. c. Gaudemus The Lawyers and Divines says Adam Tannerus are of different opinions in this point Juristae Divortii voce utuntur pro Dissolutione Matrimonii etiam quoad vinculum ut constat ex toto tit F. De Divortiis Theologi tamen ea voce Divortii solam significant separationem inter conjugeâ— aut quoad Cohabitationem aut quoad Thorum Adam Tannerus Tom. 4. Disput 8. de Matrimonio q. 5. Dub. 5. nu 74. de Divortio 4. In concilio Arelatensi which was held in An. 314. at the command of Constantine the Great under Pope Silvester in the first Year of his Papacy it was Canoned Vt is cujus uxor adulteravit aliam illa vivente non accipiat Sir Hen. Spelman gives the words of this Canon thus viz. De his qui Conjuges suas in Adulterio deprehendunt iidem sunt Adolescontes Fidâ—â—es prohibentur Nubere placuit ut in quantum possit Consilium iis detur nè viventibus uxoribus suis licet Adulteris alias accipiant If this Canon be not directly prohibitory and against second Marriage after Divorce in Case of Adultery during the Life of the other Party yet it provides that Counsel or Advice in the Case be given against it and the Parties monished to the contrary 5. Mr. Atturney Noy in Dame Powels Case reports that a Divorce causa Adulterii is but à mensa thoro non a vinculo Matrimonii and the reason he gives is this viz. Because says he the offence is after the just and lawful Marriage if for this Opinion of his any Anticanonist should dream that he died in the Catholick Faith of Matrimonial Sacraments let him consult Sir Edward Coke in the Third part of his Institutes where he doth not only allow of that Member of the foresaid distinction but withall says that in the Case of Divorce à Mensa Thoro the second Marriage is void living the former Wife or Husband Yet in Bury's Case he reports it to have been adjudged that by a Divorce the Marriage is dissolved à vinculo Matrimonii and also resolved that admitting a second Marriage to be voidable yet it is adjudged that the same doth remain in force until it be dissolved and that the Issue born during such second Coverture is a lawful Issue to inherit the Land 6. Touching the kinds and effects of Divorce whether Divorce à vinculo Matrimonii or separation only à Mensa Thori with the causes thereof the Divines and Lawyers are of different Opinions and each of these divided among themselves some conceive that as there be Divorces Ex Causa praecedente so there are some Ex Causa subsequente as Causa Adulterii and that Adultery dissolves the very Bond of Matrimony which consisteth in their being one Flesh And whereas it is written That whosoever shall Marry her that is Divorced committeth Adultery they will have it to be meant only of such as shall Marry her who is Divorced for any other cause or reason than for Fornication which they inferr from the former part of Mat. 5. 32. that whosoever shall put away his Wife saving for the cause of Fornication causeth her to commit Adultery so that for the cause of Fornication it is lawful to put her away and whosoever shall Marry her that is say they Divorced for any other cause committeth Adultery whence they would inferr that a Remarriage after Divorce for the cause of Fornication is not forbidden And as for that Divorce or Separation à Thoro Mensa they look on it as no current Coin not having as they pretend Caesar's Image or Superscription thereon but seem very positive in affirming that Phaâ—isaei interrogabant Christum de dimissione quoad vinculum non quoad Thorum mensam It is true indeed by the Judicial Law a Woman Divorced from her Husband in causa Adulterii might be another Mans Wife which is no contradiction to Mat. 5. 22. if the Divorce there mentioned be à vinculo But that which such as are for Post-repudiary Marriages much insist on is that which the Reverend Mr. Beza hath on the like place Qui hinc colligunt says he post Repudium Nullum esse secundo Matrimonio locum altera parte existente inepte colligunt loquitur enim Christus de Repudiis apud Judaeos usitatis inter quae numerari non potest Repudium ob Adulterium cum Adulteros ex lege oportet Capitali poena plecti 7 If ingressus in Religionem be as some understand it a kind of Mors Civilis then it should seem it might be for that reason that in such case it was lawful for the other Party convolare ad secundas Nuptias for by the 118 Canon of Egbert Archbishop of York An. 750. called Canon Affricaâ—ensis in exceptionibus suis è Canonibus
Church This double value shall be accounted according to the very or true value as the same may be let and shall be tried by a Jury and not according to the extent or taxation of the Church Co. par 3. Inst cap. 71. And albeit the Clerk be not privy to the Simoniack Contract yet it seems the Patron shall pro hac vice lose his Presentation But the Title of the rightful and uncorrupt Patron shall not be sorscited or prejudiced by the Simoniacal Contract of an Usurper albeit the Clerk be by his presentation admitted instituted and inducted nor entitle the King to present 4. The Church notwithstanding the Admission Institution and Induction becomes void whether the Clerk presented were a party or privy to the corrupt and Simoniacal Contract or not But Sir Simon Degee in his Parson's Counsellor puts the material Question viz. Whether the Clerk that is presented upon a Simoniacal Contract to which he is neither party nor privy be disabled for that turn to be presented by the King to that viz. the same Church In order to the resolution whereof he acquaints us with a Case reported wherein it was adjudged that if a Clerk were presented upon a Simoniacal Contract to which he was neither party nor privy that yet notwithstanding it was a perpetual disability upon that Clerk as to that Church or Living The like in another Case where B. the Church being void agreed with the Patron to give him a certain Sum of Money for the Presentation B. presented C. who knew nothing of the Simoniacal Contract till after his Induction In this Case it seem'd by Warburton Justice that C. was disabled quoad hanc Ecclesiam In which Case it was clear that the grant of the Presentation during the vacancy was meerly void that B. presented as an Usurper that C. was in by the corrupt Contract and that were it not for the same the Patron would not have suffered the Usurpation In further confirmation hereof it is also reported to us that Sir Edward Coke affirmed it hath been adjudged that if a Church be void and a Stranger contracts for a Sum of Money to present one who is not privy to the Agreement that notwithstanding the Incumbent coming in by the Simoniacal Contract is a person disabled to enjoy that Benefice although he obtain a new presentation from the King for that the Statute as to that Living hath disabled him during Life Notwithstanding all which Premises Sir Edward Coke in his Comment upon the said Statute of 31 Eliz. asserts it to have been adjudged in the forecited Case of Baker and Rogers that where the Presentee is not privy nor consenting to any such corrupt Contract there because it is no Simony in him he shall not be adjudged a disabled person within the said Act for the words of the Statute are And the person so corruptly giving c. And so says he it was resolved Mich. 13. Jac. Where the Presentee is not privy nor consenting to any corrupt Contract he shall not be adjudged a disabled person within the Act because it is no Simony in him Coke Inst par 3. cap. 71. Also it was so resolved in Doctor Hutchinsons Case by the whole Court viz. That if a Clerk be presented upon a corrupt Contract within the said Statute although he be not privy thereunto yet his presentation admission and induction are all void within the Letter of that Statute but not within the clause of disability within the same Statute 5. The Contracts which are commonly held corrupt and Simoniacal may be diversified almost into as many kinds as transferences and proprietary negotiations are capable of but those which have been most in practice as appears by the Cases reported in the Law have been by way of unlawful purchasing the next Advowson by Exchanges by Resignation Bonds by Matrimonial compacts by contracts remote and conceal'd from the Presentee by Obligations of an indirect nature and the like To the purposes aforesaid it hath been held Simony for a Parson to promise his Patron a Lease of his Tithes at such a Rent in case he would present another Parson into his Benefice with whom he was to exchange albeit that other was not privy to the Contract he making the Lease after It was likewise held Simony for a Father to present his Son by vertue of a purchase of the next Advowson which he made in the presence of his Son a Clerk when the Incumbent was not like to live by reason of a Sickness whereof he soon after died Otherwise in case the purchase had been made in the absence of the Son as is hereafter mentioned But per Hutt it was held Simony to purchase the next Advowson the Incumbent being sick The like in Winchcombes Case against the Bishop of Winchester and Puleston a Case hereafter often Margined on several accounts where it was held Simony in one Say who was presented upon a Contract which he made with the Patron the Incumbent being then sick for Ninety pound to present him when the Church should be void And as to Resignationbonds Sir Simon Degge affirms That in the case of Jones and Lawrence the sense of the Court was that if a Man be preparing his Son for the Clergy and have a Living in his disposal which falls void before his Son is capable thereof he may Lawfully take a Bond of such person as he shall present to resign when his Son becomes capable of the the Living otherwise in case the Patron take a Bond absolutely to resign upon request without any such or the like cause as for avoidance of Pluralities Non-residence or other such reasonable design The like you have in Babbington and Wood's Case hereafter mentioned So that it seems Bonds and Obligations given and taken upon just and honest grounds to resign are not in themselves Simoniacal Otherwise where ther 's is corruption in the case accompanied with some subsequent Act in pursuance thereof And although presentations made upon Simoniacal Bonds and Obligations are void in Law yet such Bonds themselves though corrupt and Simoniacal are not made void by the Statute of 31 Eliz. 6. B. brought Action against C. upon an Obligation The condition whereof was that whereas the Plaintiff did intend and was about to present the Defendant to the Benefice of Stow if the Defendant at the request of the Plaintiff should resign the same to the hands of the Bishop of London then the Obligation to he void The Defendant demanded Oyer and demurr'd and adjudg'd for the Plaintiff for the resignation might be upon a good intention to prevent pluralities or some other cause and it shall not be intended Simony if it be not specially pleaded and averr'd and Mich. 37. and 38. Eliz. Between Jones and Lawrence it was adjudg'd accordingly and affirmed an Error which the Court viewd and thereupon Judgement was given for the Plaintiff 7.
The Plaintiff declared that the Rectory of St. Peters infra Turrim London was void and that the Defendant in consideration that the Plaintiff would bestow his labour and endeavour to cause or procure him to be Rector of the said Rectory promised to give him Twenty pounds and that after the said Plaintiff procured him to be Rector by the Kings Commission and notwithstanding that he had requir'd him to pay the said Twenty pounds c. and thereupon he brought his Action upon the Case in the Court of the Tower of London and upon Non Assumpsit it was found for the Plaintiff and Judgement was there given upon which the Defendant brought Error and una voce all agreed that the Judgement was erroneous for the consideration was Simoniacal and against Law and not a good consideration therefore the Assumpsit was not good the Judgement was revers'd the Atturney said that that Court was a Court-baron as appears by a Record in the time of King Henry the Sixth 8. If A. be obliged to present B. c. and he presents by Simony yet the obligation is forfeited Or if one contract with the Patrons Wife to be presented for Money and is accordingly presented by her Husband it is Simony within the Stat. of 31 Eliz and makes the presentation void For the contract of the Wife is the contract of the Husband Likewise if the Patron present one to the Advowson having taken an Obligation of the Presentee that he shall resign when the Obligee will after Three months warning this is Simony within the Stat. of 21 Eliz. cap. 16. per Curiam Also if one promises to a Man that hath a Mannor with an Advowson appendant that if he will present him c. after the then Incumbents death he will give him such a certain Sum of Money and the other agree thereto and that by agreement between them the next avoidance shall be granted to B c. who after the then Incumbents death presents accordingly this is Simony because there was a corrupt Contract for the Advowson For although the next avoidance may be bought and sold bona fide without Simony yet if it be granted to one to perform a corrupt Contract for the same it is otherwise But if the Father purchase the next avoidance and after the Incumbents death presents his Son this is not Simony Yet by Hob. Chief Justice it was held that if in the grant of the next avoidance it appears that it was to the intent to present his Son or his Kinsman and it was done accordingly it is Simony Likewise if a Mans Friend promises the Grantee of the next avoidance a certain Sum of Money and so much certain per Annum if he will present B. to the Church Quando c. and B. not knowing any thing of the Contract be presented accordingly this is Simony For if a Stranger contract with the Patron Simonaically it makes the presentation void 9. A Patron took an Obligation of the Clerk whom he presented that he should pay Ten pounds yearly to the Son of the last Incumbent so long as he should be a Student in Cambridge unpreferr'd this is not Simony otherwise if it had been to have paid it to the Patrons Son per Cur. An Obligation was made by a Presentee to a Patron to pay Five pounds per An. to the late Incumbents Wife and Children the Parson kept and enjoyed the Parsonage notwithstanding great opposition to the contrary 10. A Parson preferr'd his Bill for Tithes the Parishioner pleaded that he was presented by corruption c. and by Simony and a Prohibition was granted notwithstanding the Parson pleaded pardon of the Simony by the King and it seem'd that it was now triable by the Common Law The Church may be full or void in effect when there is a Simoniacal Incumbent yet to say the Church was full for Six Months is no plea when he was in by Simony For a Quare Impedit may be had by the rightful Patron after the Six Months against the Incumbent of an usurper that is in by Simony And the death of a Simoniacal Incumbent doth not hinder but that the King may present for the Church was never full as to the King and that turn is presented to the King by force of the Statute 11. In the Stat. of 31 Eliiz there is no word of Simony for by that means then the Common Law would have been Judge what should have been Simony and what not by which Law the Simoniack is perpetually disabled And a Covenant to present such a one made under any consideration whatever be it of Marriage or the like may be Simoniacal But if a Father in Law upon the Marriage of his Daughter do only voluntarily and without any consideration Covenant with his Son in Law that when such a Church which is in his Gift falls void he will present him to it It hath been held that this is no Simony within the said Statute 12. A Simoniacal Usurper presenting shall not prejudice the rightful Patron by giving the King the presentation The proof of Simony will avoid an Action of Tithes commenced by a Simoniack Parson who dying in possession of the Church the King loses not his presentation because the Church was not full of an Incumbent but remains void though the Simony or Penalty thereof were pardoned y Lastly all corrupt resignations and exchanges of Ecclesiastical Livings are punishable with the forfeiture of double the Sum given and received both in Giver and Taker by the said Statute but it seems this works no avoidance or disability in the publick person 13. The Patron of an Advowson before the Statute of 31. Eliz. for Simony doth sell proximam Advocationem for a sum of money to one Smith and he sells this to Smith the Incumbent After which comes the general Pardon of the Queen wherby the punishment of Smith the Incumbent is pardoned and of Smith the Patron also If the Incumbent may be removed was the Question Williams said that the Doctors of the Civil Law informed him That the Law Spiritual was that for Simony the Patron lost his Presentation and the Ordinary shall present and if he present not within six montehs then the Metropolitan and then the King Spurling Serjeant This punishment cannot discharge the Forfeiture although it dischargeth the punishment Glanvil contra and said that this point was in question when the Lord Keeper was Atturney and then both of them consulted thereupon and they made this diversity viz. Between a thing void and voidable and for Simony the Church is not void until Sentence Declaratory and therefore they held that by the Pardon before the Sentence all is pardoned as where a man committs Felony and before Conviction the King pardons him by this Pardon the Lord shall lose his Escheat for the Lord can have no Escheat