dignities of Cathedral Churches but amongst these dignities the Penitentiary is not reckoned and there is some difficulty also as to the Divinity Lecture though there be Judgments as to that in favours of Graduats III. The right of Graduats has no place but when the Benefices are vacant by death IV. When the Graduate hath a Benefice of 400 Francs a year or an Annuity of the same value which stands him instead of a Benefice he is thought provided and cannot pretend to any Benefice in quality of a Graduate unless he had not that Provision by virtue of his degrees for in that case he may renounce his Benefice or Annuity and have right as before to demand the Benefics appropriated to Graduats The reason why a Graduat having a Benefice of 400 Francs is reckoned provided is that in the Concordat 200 Florins are mentioned which have been valued at 400 Francs But I think at present they ought to be valued at 600. V. When the Benefice that falls in the the month of Graduats is under Rule it cannot be demanded but by a Regular Graduat Just so the Regular cannot demand Secular Benefices VI. In fine if an Indultee or Priviledged person and a Graduat demand one and the same Benefice the Indultee is preferred before the Graduat The Exemptions which Popes have granted to several Churches Of Exemptions as well Regular as Secular have also much derogated from the Canonical Right of Bishops because Abbots and other Patrons confer in full Right the Benefices which are contained in their Exemptions and they failing the Right is devolved on the Pope who is become their immediat Superiour This is not a proper place to handle these exemptions to the full nor to speak of their Original besides we have elsewhere said somewhat as to that Subject I shall only mention what relates to the Custom of France I. The Decree of the Council of Trent that derogats from Exemptions is not received there But the Titles on which the Exemptions are founded are examined and if the Titles be lawful the Priviledges that are expressed are allowed II. Possession alone is not enough to authorise these Priviledges Legal Titles must also be produced in as much as many are in Possession of their Priviledges because their Titles have not been sufficiently examined which most commonly are false and it is not Just that Exemption which is but a Priviledged Right should prejudice the common Right of Bishops unless it be well grounded and granted for lawful causes To this may be added that (1) Fraus nemini debet Patrocinari falshood can never make a Prescription and that a Possession grounded on a bad Title is no true Possession All possible rigour ought to be used then against the Right of Exemption or Priviledge because it derogates from the Common Law and nothing should be granted to the exempted but what is expresly set down in their Title of Exemption And it is absolutely necessary that the Priviledges be mentioned in plain Terms without any ambiguity III. The more ancient the Titles of Exemption are of the less extent are the Priviledges of the Exemptions as appears by Ancient Formularies which hardly contain any thing else in respect of Monasteries but the liberty of chusing the Abbot and the free Disposition of all their Revenues as to the rest they were entirely Subject to the Bishops Exemptions as we find them now a days began only with the Reformations of Cluni and Cisteaux who were exempted from the Jurisdiction of Bishops by the Title of their Foundation Though that happened in a disorderly time yet these Exemptions are not medled with in France seeing they are owned by all men But there is great cause to doubt of the most part of others which are supposed to have been granted by Popes after the Foundation of Monasteries There are but few of them that are true in their full extent which is easily discovered when one sets seriously to work to examin the Titles And in that manner Peter de Blois Arch Deacon of the Church of Bath in England affirms that the Exemptions of Monasteries in his time were examined of which the greatest part were forged by the Monks The Bishop of Salisbury thought the Letters of Exemption of the Abbey of Malmesbury to be false quia in filo Bulla videbantur vitiosae stilumque Romanae curiae minime redolebant Nevertheless the Abbot refusing to submit to his Bishop fell into such a rage against him that the same Peter de Blois complained of it in his letter (1) Petr. Blaes Epist 68. to Pope Alexander III. To whom upon occasion of the Abbot of Malmesbury he represents the abuses of Exemptions take it in his own words Viles sunt Abbates miseri qui potestatem Episcoporum non exterminant cum pro annua Auri uncia plenam à sede Romanâ possint assequi libertatem By this it is apparent enough that Monasteries obtained for Money from the Court of Rome as many Exemptions as they pleased and that Simony was much practised by the Monks especially the Regular Abbots who by that means shook off Obedience to their Bishops that they might more freely squander away the Revenues of their Monasteries and have no Body to check them for their vices (1) Petr. Blaes ibid. Detestantur Abbates habere suorum excessuum correctorem vagam impunitatis licentiam amplectuntur claustralisque militiae jugum relaxant in omnem desiderii libertatem Hinc est quod monasteriorum fere omnium facultates datae sunt in direptienem praedam These and many other reasons which I omit are the cause that no great favour is shewn to the Exemptions of Monasteries in France though they be not wholly rejected there To which may be added that many of these Exemptions especially those of Chapters have been obtained in the times of Schism and it often happened that the Chapter which opposed its Bishop acknowledged one Pope and the Bishop another And that is to be taken notice of in the Titles of Exemptions Rules how to distinguish true Exemptions from false that what was done upon occasion of Schism may not be authorised That true Titles may be the more easily distinguished from such as have been foisted and counterfeited we shall here set down several Rules which are necessary to be known if one would with any exactness make that distinction And that will not only serve to discover the falsity of Priviledges and Exemptions but also to Judge of other Titles I. One must have seen true Titles that are past all exception according to which are to be examined those that are produced The Characters are to be minded if it be an Original Piece for it seldom happens that they who counterfeit Titles do exactly imitate these Characters whether it be that they write too hastily or that they are satisfied to do somewhat that comes near them but which is not altogether like II. The difference of
power given to Churches to see the Popes dispose at their pleasure of the goods and Lands which Kings their Predecessours had given to Churches at that time when they had the power over them It is certain Princes would never have granted such large Revenues to Churches if they had thought that they should have fallen into the hands of the Popes For to what end was it to give to Churches whole Towns and great Demains with secular Jurisdiction when the same was not to be in their disposal for the future The German Historians attribute chiefly to the Emperours Otho's the enriching the Bishops and Monasteries of Germany with so great Revenues (1) Theodor. de Hiem priv Jur. Imper. Otho primus omnibus penè Cathedralibus Ecclesiis in Italia Gallia Germania Burgundia et Lotharingia constitutis multas civitates castra oppida villas multa alia dominia temporalia Jurisdictiones donavit atque illis omnibus Ecclesiis propria insignia perpetuo deputavit Archiepiscopos quoque episcopos ducatibus comitatibus baroniis communivit quibus nobiles potentes vasallos subjecit ut semper essent ad resistendum manu fortiâ— aganis Hareticis c. That does not altogether agree with the reflexions that Father 2 Paul hath made in his History where he pretends that the Bishops of Germany during the Wars that were betwixt the Emperours and Popes had usurped the Lands which at present they enjoy with the Titles of Peers Marquesses and Counts Though that may indeed be true of some yet it cannot be generally affirmed of all for the Records of those Churches evince the contrary Nevertheless the titles which they produce ought to be well examined because many of them are false Seeing Bishops and Abbots were at that time employed in the greatest affairs of State it was easy for them to obtain what they desired of Princes Besides that they being more capable of business than Laicks the same Princes consided much in them But these great Revenues wherewith Churches have been enriched have only served to kindle War betwixt Popes and Princes every one pretending â—o have a particular right over Ecclesiastical Revenues And that divided the Authors of these times some writing in favour of the rights pretended by Princes and others in favour of the Popes And it is no easy matter at present to reconcile together the rights of those two Powers No man can deny The Authority of the Pope concerning Benefices but that the Pope â—â— Bishop or Metropolitan of Rome Patriarch of the West and Head of thâ—â— Church I shall not now examine by whâ—â— Right Divine or Positive these tither belong to him for that is a Question of Divinity rather than History It moreover certain that the Pope hath 〈◊〉 all these Qualities in vain and that 〈◊〉 very one ought to enjoy some rights thâ—â— are peculiar to him It is not questions but that in quality of Bishop of Rome he may dispose of the Benefices with his Diocese It remains then only to 〈◊〉 inquired into whether he can in qualiâ—â— of Patriarch of the West and Head 〈◊〉 the Church by right provide for all thâ—â— Benefices or Ecclesiastical Dignities 〈◊〉 all Christendom If we consult the matter of fact it is of publick Notoriety that the Church of Rome hath not haâ—â— any Priviledge as to that above other Churches Every one took care of providing what Ministers they wanter without having recourse to Rome anâ—â— when difficulties arose they were adjusted in Provincial Synods No maâ—â— ever wrote before the Establishment oâ—â— the new Law that the Bishop of Rome alone in quality of the Successor of St. Peter had all Ecclesiastical Jurisdiction and that other Bishops were only his Vicars or Delegates Popes nevertheless do at present pretend that their Authority in respect of Ecclesiastical Revenues is founded on Divine Right and that because they had not for many ages enjoyed it it ought not to be inferred that they had no Right to it A Divine Right say they being essentially inherent in the Person of the Pope can never prescribe And it is a bad consequence to say that Popes have no Right because they have not for a long time enjoyed it nor do at present enjoy it in its full extent Men are sometimes obliged not to make use of their Right or to remit part of it for Peace sake Laws in their rigour are sometimes prejudicial to the repose of the Church and in that case mild ways suitable to the times are to be followed And therefore (1) Innoc. III. de translat Episc tit 7. cap. 1. Pope Innocent III. affirms in one of his Epistles that the Translations of Bishops and other changes of Sees belong by Right to the Church of Rome that Popes enjoy that Priviledge in Quality of thâ—â— Successours of St. Peter and that in that Quality they are above all the Canon Law So that according to his Logick we ought not so much to consider what is decreed by the Canons as what is Commanded by Popes on whom thâ—â— same Canons depend because accordâ— to his Principle all the Canon Law derives its force and Authority from thâ—â— Primacy of St. Peter Pope Innocent who laid down thâ—â— Maxim in favour of his See knew for aâ—â— that that all the Ancient Canon Law is contrary to it and that the Election Translations Demissions or Resignations of Bishops were made in Provincâ—â— Synods and besides that Princes have had a great share in all those matters within their own Kingdoms For instance the Practice of the Church oâ—â— France under the first Race of their Kings was very far different from that pretended Divine Right mentioned in the compilation of the Decretals For we find that the Kings by themselves called Councils for affairs of that nature and that (1) Gâ—â—gor Turon lib. 5. cap. 20 27. in the greatest causes such as the deposing of Bishops they named for Judges what Bishops they pleased within their Kingdom In a word Kings and the Bishops of places handled in Councils the affairs which the Popes now a days pretend to belong to them by Divine Right It is true under the Second Race of the French Kings the Authority of the Popes was greater in France But it was still limited by the Princes without whose consent they could do nothing even in the causes which are called the greater and whereof the decision seemed to be reserved to the Popes As to matters of smaller importance the Bishops had the absolute power over them and the whole disposition of Benefices depended on them The Popes had never dreamt of the right which is now established if private men who disputed one with another about the validity of their Elections had not had their recourse to the chief See for decision of their Controversies We find still in the Eleventh Century instances of the power of Provincial Councils who received Resignations or Demissions made by Bishops and admitted
Regulation which is called de publicandis Resignationibus which is in force in France and hath been made to prevent Benefices from becoming Hereditary By that Regulation the Resignee is obliged to publish his Resignation within the space of six Months if within that time he take not Possession of the Benefice and the Resigner die the Benefice is vacant per obitum However the Right of the Resignee does not prescribe till after three years whil'st the Resigner is alive and he hath all that time for taking possession of the Benefice that hath been resigned to him In the third place there are many conditions required to make a Resignation in favorem valid Seeing they cannot be admiâ—ted but by the Pope they cannot be made but by Proxy And that the Procuration may be good it ought to be made before an approved Notary whether Apostolical or Royal and signed by two Witnesses It ought besides to be special and for such a Benefice And if it take not effect within a year it is presumed to be revoked The Resigner may also revoke his Resignation before it hath taken Effect and that Revocation ought to be legally intimated to the Resignee or to the Proxy There are also some certain Cases Of Regress wherein the Resigner may re-enter into his Benefice by a way which is called Regress It is not easy to determine when the Regress ought to take place and therefore the Courts of Justice disser much amongst themselves in the Judgments they pronounce about that matter and many times one and the same Parliament varies as to the matter of Regress In that case Equity is more observed than the Rigour of Justice For it is commonly thought the sick person hath made a tacit Compact with him to whom he hath resigned his Benefice that his Resignation shall be null in case he recover his health Seeing that Compact looks very much like confidence it is thought to produce a kind of natural obligation and that the Resignee ought to be condemned as a perfidious person Upon that principle the Parliament of Normandy insisted not long since in deciding a difference that happened betwixt two Church-men concerning the Cure of holy Cross in Rouen The Resigner Recovering his health would have entred again into his Benefice at the desire of his Parishioners who sollicited him On the other hand the Resignee had taken Possession of the Cure by virtue of his Legal Collation from Rome upon the Resignation Nevertheless the Resignee was maintained in his Possession and it was Judged that Regress ought to take place in that case Perhaps it would be more convenient to assign an Alimentary Annuity to him that hath resigned his Benefice than so easily to admit Regress At least they ought not to take place when the Resigners reserve to themselves an Annuity Besides by countenancing Regress Resignations in favorem are also countenanced which are odious Simoniacal because many would not resign their Benefices if they did not hope to enter again by way of Regress And therefore Regress ought not to be granted but very rarely and for weighty reasons for instance because of Nonage It being to be presumed that when a Beneficiary who is under age resigns his Benefice without the consent of his Father or Guardian he hath been perswaded to do it by some trick So that Regress then takes place and the Minor is restored to his Benefice without any New Collation There is another kind of Resignation in favorem Of Exchange which is called Permutation or Exchange and is likewise prejudicial to the Right of Ordinaries and more to that of Patrons It is in the Ordinaries power nevertheless to admit or reject them that depending on him He ought never to allow Exchanges unless for lawful and Canonical reasons But so great is the corruption now a days in Beneficial matters that nothing occurs oftener than instances of Exchanges without any cause and Bishops grant them easily when Benefices are in Patronage and they confer them not in full Right Permutation then is nothing else but the Exchange of one Benefice for another made in the hands of the Superiour And seeing it is supposed to be made for true reasons and that by consequent there is no Simony in the case it may be admitted by the Ordinary's in as much as there is no need of a Dispensation To the end an Exchange may be valid the Exchangers must resign their Benefices in the hands of the Ordinary or Ordinaries if they be of different Dioceses and the Ordinary gives them New Collations according to their demands for he is bound and cannot dispose of the Benefices but in favours of the Exchangers If he doth it the Collations are null and each continues in his Benefice Besides they must mutually take Possession of the Benefices otherwise nothing is done and things remain as they were before If one onely of the Exchangers had taken Possession and the other die the Benefice of him that dies is vacant per obitum and the other keeps his Benefice because the Exchange was not compleated This hath been appointed by the New Ordinances and the Declaration of insinuations to prevent a disorder that was much in use For it happened very often that a Beneficiary being ready to die exchanged his Benefice with another Beneficiary and the latter took Possession of his Benefice with whom he had exchanged whereby the Permutation was accomplished on his part so that the Benefice belonged to him Afterward the sick person dying without having taken Possession of the Benefice that was given him in Exchange the surviver kept his former Benefice and so he enjoyed two at the same time by that fetch which Mr. Charles du Moulin in his Commentary upon the Regulation de publicandis calls speciem furti Nevertheless the practice continued long after him in the Parliaments and that was called gaudere de bona fortuna But the New Ordinances have reformed that abuse and there is no more now of gaudeat de bona fortuna The frequent Unions of Benefices Of Unions which were made in the times of Schism and disorder have also done great prejudice to Ordinary Collators and to the Pope himself because by that means many Titles have been suppressed They have nevertheless been profitable to Bishops and Chapters who have made use of these occasions for uniting to their Benefices inferiour Livings Cures But these kinds of Unions are not now in use unless it be sometimes in favour of Communities who enjoy by that means several Benefices yet there is greater care taken of that at present than there was in times past and if it were not well lookt after a great part of Benefices would fall into the hands of Regular and Secular Communities Which would be very prejudicial to Collators and Patrons and even to private Church-men who can no longer pretend to Benefices which are united in that manner I speak not here of necessary Unions
of that Subjuct And it is for the same reason that I have not said any thing neither of the Original of Tithes because it hath been also well enough handled by Fra. Paolo All men are sufficiently perswaded that under the first Race of the Kings of France that Nation had no recourse to Rome for regulating the affairs of the Church The Popes Power in France Nay and under the Second Race Charlemain who gave a great deal of authority to Popes did not consult them about the Erection of the new Bishopricks and Arch-Bishopricks which he established In Italy it self many Ages after the Princes and Bishops were absolute Masters of all that belonged to Churches The Prince or Judges appointed by him decided the differences that happened betwixt Bishops and Abbots and amongst other Church-Men concerning their Revenues and Priviledges but seeing matters now a days are settled in another manner and that the Discipline of the Church is wholly altered I thought it necessary having observed the original and Progress of Church Revenues to describe in a few words the present State of beneficial matters It would be to no purpose to know the Customs of our Fore-Fathers if we be ignorant of what is at present in use amongst our selves The former serve only for our instruction but the latter will be useful for the conduct of our lives An Explication of the New Canon Law I shall say nothing in this place of the Original of Benefices in the manner that they are established at present for it is very well known that they did nor begin till about the Eleventh Century And whereas in the Ancient Canons there is only mention made of Ordination and the Ministry afterward there was no more talk but of the Portion or Benefice Nevertheless though the manners of expression and a great part of the Ancient Discipline were wholly changed yet in many things the Maxims of the Ancient Law were still observed For Instance heretofore Ordination differed not from the Ministry or Benefice and therefore when by the Introduction of the New Law they were separated that Maxim was still retained That he who can Ordain can also Confer a Benefice and that he who cannot Ordain cannot Confer a Benefice neither But by degrees the Popes have by their Priviledges and Exemptions derogated from the Common Law that was grounded on the Ancient Canons and we see that Abbots exempted from the Jurisdiction of Ordinaries confer in full right Cures and other Benefices Though the Establishment of Benefices be commonly referred to the end of the Tenth Century or beginning of the Eleventh yet some footsteps of them are to be seen long before For about the year 500 under Pope Symmachus to some Church-men Portions of Land were assigned to be enjoyed by them for Life as appears by the terms of (1) Tom. 1. Concil Gal. Ann. 513. the Epistle of that Pope to Caesarius where he prohibits the alienation of Church-Lands unless it be in favours of Clerks who might have merited or of some Monasteries or Hospitals and that only during the Life of those that should enjoy them Possessiones Ib. q. 1. possessiones quas unusquisque Ecclesiae proprio dedit aut reliquit arbitrio alienari quibuslibet titulis atque contractibus vel sub quocunque argumento non patimur nisi forsitan Clericis honorem meritis aut Monasteriis religionis intuitu aut certe peregrinis necessitas largiri suaserit sic tamen ut haec ipsa non perpetuò sed temporaliter donec vixerint perfruantur These words make it manifest enough that even in that time there was some kind of Benefice though the Portion of Revenues was not as yet made to Church-men in particular but that was rare at that time and only granted for extraordinary Causes There are besides some footsteps of the Foundations of Benefices and of the Right of Patronage in the Tenth Canon of (1) Ann. 441. the First Council of Orange but the Custom of that Time was far different from the present Practice The Rules of the New Canon Law which began chiefly under Pope Nicholas I. who lived about the middle of the Ninth Age brought a great alteration in the Affairs of the Church Pope Gregory VII who lived pretty forward in the Eleventh Age 〈…〉 of 〈…〉 Law extended the Rules of that New Law beyond all that his Predecessors had done And the Popes that came after him were so far from remitting any thing of these Novelties that on the contrary they augmented them so that the Law which hath been introduced into the Church since that time deserves better to be called the Popes Law than the Canon Law because in settling this New Law there hath not been so much regard had to the Ancient Laws of the Church as to the Profit of the Popes and Court of Rome And this in process of time occasioned great disorders so that Princes were obliged to make Laws and Prag maticks to hinder those Abuses though it hath not been in their power entirely to abolish them The Compilation which Gratian the Monk (1) Ann. 1150. made of the Canons of Councils the Decretal Epistles of Popes and of many sentences of the Fathers of which he made up a Body of Canon Law contributed much to the authorising of the New Law For that Collection of Canons was publickly taught in Schools and even made use of in deciding Controversies The Fathers and Councils were not studied in their Original but only in the Decrees of Gratian and Men were not knowing enough at that time to perceive that a great many of the Citations of Gratian were false and that he followed not always the Rules of the Ancient Laws having inserted into his Collection several supposititious Pieces Besides that he gave to the Popes Decretals the same Authority as to general Councils and sometimes even perverted the words of the Ancient Canons that he might accommodate them to the Law which was authorized by the Popes of his Time But the Collection of the Decretal Epistles of Popes which (1) Ann. 1230. was made by order of Gregory IX occasioned a far greater Alteration in the Affairs of the Church Nevertheless they were in France publickly read in Schools as well as the Collection of Gratian. These Decretals have been the cause of an infinite number of Law-Suits and though they were received in the Western Church and publickly taught by the Professors of the Canon Law yet there was a necessity of rejecting them on several occasions and having recourse to the Ancient Canons At that time the Compilation of Gratian was called the Ancient Law though it contained a great many Novelties But being compared with the Book of Decretals there was some reason for calling it so The tedious and troublesom Debates which the Kings of France had with the Popes was the cause that the French despised the Collection of the Decretals nor are they at present much esteemed
by them They are of Opinion that that work was only compiled for establishing the Interests of the Pope and overturning the Ancient Law And the Satyrs that were made against the Decretals run still in their minds especially this Proverb which was heretofore so common Depuis que le decret print ales Et Gend armes porterent malles Moins allerent à cheval Jamais le monde n'eut que mal Since the Decrees were pieced with tales And Souldiers put on Coats of Males Since lazy Monks have mounted pad The World 's been plagu'd with all that 's bad But after all as to what concerns the common practice the Decretals are to be preferred before the Decrees seeing most of the Rules of Law which now are in use are taken out of the Book of Decretals and not from the Collection of Gratian. Nor is the sixth Book of Decretals to be slighted which is commonly called the Sext though it was compiled (1) Ann. 1298. by the order of Pope Boniface VIII an enemy of the French because a great part of the Constitutions that are contained in that Collection have been taken out of the Decrees of the Council of Lyons and are observed in France Besides the Decretals which carry the Title of Clementine because that Collection is attributed to Pope Clement V. have been for most part taken out of the Council of Vienne where the Ambassadours of France were present The other Decretals that are contained in the Body of the Canon Law under the name of the Extravagants of John XXII and the common Extravigants seem not to have so great authority in France as the former Decretals Neither do I think that all the new Bulls of which the Bullary is composed are much esteemed there because they have never been received in France Since the great clashings that happened betwixt Boniface VIII And Philip the Fair and betwixt Julius II. and Louis XII The French have been much more cautious in admitting the Bulls of the Pope than they were before The differences likewise that happened in the Council of Trent in respect of France have been also the cause that the French suspect all that comes from Rome and that they submit not easily to its Laws And therefore the Popes Bulla are not received till first they be examined and if it be necessary modified Nay and many times they are not actually received In a word there are but some of the Rules of the Chancery received in France These are now the grounds on which the new Law is founded and which hath been very much qualified in France the knowledge whereof is necessary that we may understand what measures are at present to be taken in Beneficial matters Though France hath submitted to the New Law The Original of the Liberties of France yet hath it still retain'd somewhat of the Ancient Canons And when it hath found the new Laws to be contrary to the Interest of the State it hath had recourse to the Ancient and defended it self by the Canon Law And therefore they have given the name of Priviledges or Liberties of the Gallican Church to that which was no more but the Ancient Canon Law But which hath been called Priviledges or Liberties in respect of the New For instance when the French have been pressed by the Authority of the Decretals they have had recourse to the Ancient Law contained in the Decrees of Gratian but since the Collection of Gratian authorises a great many false Decretals of the first Popes which have introduced a New Law the French Bishops have had recourse to a more Ancient Compilation of Canons when the Authority of these Decretals hath been objected to them Nevertheless for all that France could do the Popes Law hath at length prevailed notwithstanding the Pragmaticks of the Kings who endeavoured the re-establishment of the Ancient Canons The most Ancient Pragmatick of France is attributed (1) Ann. 1268. to St. Louis But there is ground to doubt whether it be his or not though it seems no man hath hitherto questioned it The reason why it is thought to be of St. Louis is because it bears the name of a King called Louis and that the Date proves evidently that it can be of no other Louis but Louis IX Elias of Bourdeille Archbishop of Tours who was afterwards made a Cardinal hath mentioned all the Articles of that Pragmatick in a Writing that he composed in the the time of Louis XI against the Pragmatick Sanction of France It is true he refutes the Pragmatick of St. Louis as if it had been really the Act of that Prince But he seems to have doubted of it not daring absolutely to affirm that he was the Author of it but only (2) Adscribitur ei fecisse pragmaticam that it was ascribed to him The Contemporary Authors who have written his Life speak not a word of it The Popes who have so vigorously opposed whatever they thought contrary to their Interests did not at that time complain of that Pragmatick though it wholly ruined their Interests Is it possible that in the (1) Ann. 1438. Assembly of Bourges where that famous Pragmatick past no mention should have been made of the Pragmatick of St. Louis if there had really been any such Nothing could at that time have been of greater force to authorize that Aslembly There appears nothing more Ancient in favours of the Pragmatick of St. Louis than the Remonstrances made by the Members of Parliament to King Louis XI And there is a great deal of probability that it hath been foisted in about that time (2) Ann. 1461. because it was known that King Louis being then but Dauphin was of Intelligence with the Court of Rome for abrogating the Pragmatick made at Bourges and the Members of Parliament omitted nothing that could make for that Pragmatick There are besides terms somewhat extraordinary in the Pragmatick attributed to St. Louis These words ad perpetuam rei memoriam are not of the stile of Ordinances Nor do we find any where else that St Louis affected that way of speaking that his Crown depended of God alone neither was it at all proper for the affairs that then were in agitation I could bring a great many other Reasons to shew that there is ground to doubt of the Reality of that Pragmatick But besides that that would lead me into a long and tedious digression the Canon Law of France subsists not so much upon the Pragmatick ascribed to St. Louis as upon that of Bourges and the Concordat which hath derogated from several Articles thereof To know then the substance of the Law of France in regard of Beneficial matters The Rules of the French Law We must not wholly rely on the Popes Decretals but it is also necessary to know wherein the Pragmatick Concordat the Edicts of the Kings and the Sentences of Supream Courts differ from the Law established in the Decretals Besides seeing the
effect real Titles which give to Comendatary Abbots all the Rights which Regular Abbots enjoyed to whom they have succeeded That Principle which is unquestionable being supposed it is plain enough to whom the Right of Patronage belongs whether to the Abbot alone or to the Monks Jointly with him There needs no more for that but to consult the Right of the Regular Abbots of every Order If the Constitutions and Custom of the Order attribute to the Abbot alone the honorary Rights there is no doubt but the Abbot Commendatary ought to enjoy the same Rights If on the contrary the Regular Abbot cannot enjoy these Rights but with consent of the Community and that he be not the absolute Master of them they must be divided betwixt him and his Community in the same manner as temporal goods are For then the Rule gives to the Monks the same power in respect of their Abbot as the Canon Law gives to Canons in regard of their Bishop We must nevertheless take notice that it is not enough to establish the Right of Monks that the Abbots have taken the counsel or even the consent of the Community when there has been occasion of nominating to Benefices for many may have done that without any obligation upon them from their Constitutions But it must besides be made out that their Nominations would have been null without the consent of the Community The reason of that Maxim is because the Canon Law and Popes Bulls give all the honorary Rights to Abbots and so there is no derogating from them but for great reasons It is certain the first Monks were entirely subject to their Abbots in all that concerned their Functions and Employments St. Benet hath also reserved to the Abbot that Superiority over the Religious And when that Order began to receive Lands and that it was necessary to give the charge of them to some Monks in particular the Abbot alone gave them their Commissions which were at first but Administrations though since they are become Benefices I make no doubt but the Popes Bulls which are very favourable to Commendatary Abbots are founded on that Ancient Right of Regular Abbots But as to what concerns Temporal goods the same Bulls of the Pope do not allow them to be alienated because they belong to the whole Community and not to the Abbot alone And therefore when the question is of selling or alienating any Lands or Possessions belonging to the Abbey the Abbot is not then absolute Master but his Community must consent to it For the same reason Commendatary Abbots are obliged to divide the goods and Revenues of the Abbeys with the Monks or to give them Money to the value of their share or Portion And though they are very willing to rest satisfied with a yearly pension yet they have still the same Rights to the Lands and Inheritances It concerns them to have a care that they be not imbazeled in the hands of the Abbot in as much as their Portion diminishing by the diminution of the Revenues of the Abbey their Pension would be lessened at the same time The Abbots themselves cannot hinder the Monks from taking cognisance of the Leases which they make of the Lands of their Abbey and from having always an eye over their actions because they have the same right that the Abbots have of enjoying the Revenues of the Monastery Agreements betwixt Abbots and Monks That common Right of the Abbots and Monks in regard of the Temporal Profits of Abbeys has given occasion to Agreements and Transactions that are made betwixt them for the partition of the same In France the Revenue of the Abbey is divided into three parts of which there is one for the Monks one for the Charges and a third for the Abbot But the Abbots enjoy commonly two parts because they oblige themselves to defray the charges and if they neglect to do it a third part of the Revenue may be sequestrated until it be done Upon that foot it is easy to decide the difficulties that might arise betwixt the Abbot and Monks about the division of the Revenues There needs no more but to give a third part to the Monks and two thirds to the Abbot who is obliged to the reparations of the Fabrick payment of Tenths and other Charges As to the honorary Rights they ought not to fall under a dividend because by the Canon Law they all belong to the Abbot alone who may make them over either in whole or in part to his Monks But that gratuitous Concession does not prejudice the Rights of his Successours because the Abbot can only dispose during his life of the Rights that subsist in his person and the Monks cannot enjoy them after the death of him that hath granted them because that Concession is no more in force It is not the same as to Agreements or Transactions because all Transaction supposes the Right of two Parties who are agreed together and so the agreement will always subsist in respect of the Religious though the Abbot be dead until it be broken off by his Successour In France Abbots may break the Agreements of their Predecessours especially if they think themselves injured We have many instances of that practice And there seems to be reason for so doing because Abbots may make secret Compacts with the Monks and take the advantage of such to the prejudice of their Successours And therefore the Abbots have right to break the Agreements of their Predecessours It is a harder matter to dissolve those Transactions when they have been confirmed at the Court of Rome and in the Parliaments with cognition of the cause for then they become real and by consequent oblige the Successours In that case the Abbots cannot rescind the Concordat or Agreement till they have obtained a Rescript from the Pope and letters from the Parliaments upon a Bill preferred Farthermore we are to take notice that many times the partition of the honorary Rights is inserted in the Concordats with the division of the Revenues and especially the Presentations to Benefices as if that could be divided betwixt the Abbot and Monks It is a vicious clause in the Agreements because it is of the nature of a Concordat that they who Transact have some Right to the thing for which they do Transact otherwise it is not an Agreement but a Concession This Maxim which is undeniable being supposed it is easy to resolve the difficulties that daily happen betwixt Bishops and Religious communities during the Vacancy of the Abbatial See To whom it belongs to present to Benefices during the Vacancy of the Abbatial See The Ordinaries provide to Benefices that are vacant at that time and the Monks also on their side present which daily occasions great suits and it seems that there is nothing as yet fixt and determined as to that But according to the principle which we have laid down there is no doubt but when the Religious Community presents to