The Court of the Arches Jt is called in Latin Curia de Arcubus which is the chiefest and ancientest Consistory that belongeth to the Arch-Bishop of Canterbury for the debating of Spiritual Causes So called of the Church in London where they sit and hold this Consistory called Bow-Church which is in Latin Arcuum Ecclesia and called Sancta Maria de Arcubus Which Church was dedicated to our Lady and had that Denomination at first of Bow-Church by reason of building of the top of the Steeple Bow-wise or Arch-wise like so many Bows bent The Judge of this Court is called Dean of the Arches because with this Officialty is commonly joyned a peculiar Jurisdiction of thirteen Parishes in London termed a Deanry being exempted from the Authority of the Bishop of London and belonging to the Arch-Bishop of Canterbury Of which the Parish of Bow is one and the chief because the Court is there kept 4. The Court of Audience The Court of Audience says Coke is kept by the Arch-Bishop in his Palace and medleth not with any matter between Party and Party of contentious Jurisdiction but dealeth with matters pro Formâ as Confirmations of Bishops Elections Consecrations and the like And with matters of Voluntary Jurisdictions as the granting of the Guardianship of the Spiritualties Sede Vacante of Bishops Admission and Institution of Benefices dispensing with Banes of Matrimony and such like 5. The Court of Faculties This Court belongeth to the Arch-Bishop And for the granting of Faculties there is under him an especial Officer called Magister ad Facultates The Master of the Faculties Now a Faculty in the Common Law is used for a Privilege or especial Power granted unto a Man by Favour Indulgence and Dispensation to do that which by the Common Law he cannot do As to eat Flesh upon days prohibited to marry without Banes first asked to hold two or more Ecclesiastical Livings the Son to succeed the Father in a Benefice and such like 6. The Court of Peculiars The Arch-Bishop of Canterbury hath a Peculiar Jurisdiction in divers Parishes within the City of London and other Diocesses c. 7. The Consistory Courts of the Arch-Bishops and Bishops Consistory says one is the Counsel-House of Ecclesiastical Persons and it is a word borrowed of the Italians 〈…〉 f. 338. or rather the Lombards and signifies as much as Tribunal It is Vocabulum utriusque Juris and is used for the place of Justice in the Courts Christian or Spiritual The Consistory Court of every Arch-Bishop and Bishop in every Diocess in Ecclesiastical Causes is holden before his Chancellor or before his Commissary in places of the Diocess far remote and distant from the Bishop's Consistory so as the Chancellor cannot call them to the Consistory without great Travels and Vexation And he is called Commissarius Foraneus From these the Appeal is to the Arch-Bishop of either Province respectively Official Note Officialis in the Canon Law is especially taken for him to whom any Bishop doth generally commit the Charge of his Spiritual Jurisdiction And in this sence one in every Diocess is Officialis Principalis whom the Statutes and Laws of this Kingdom call Chancellor 32. H. 8. c. 15. The rest if there be more are by the Canon Law called Officiales Foranci but with us are termed Commissaries 8. The Court of the Arch-Deacon or his Commissary This Court is to be holden where and in what places the Arch-Deacon by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Arch-Deaconry And from him the Appeal is to the Diocesan He is called Oculus Episcopi 9. The Court of Delegates This Court is so vulgarly called because these Delegates do sit by force of the King's Commission under the Great Seal upon an Appeal to the King in the Court of Chancery in these Causes 1. When a Sentence is given in any Ecclesiastical Cause by the Arch-Bishop and his Official 2. When any Sentence is given in any Ecclesiastical Cause in places exempt 10. The Court of the Commissioners of Review Ad Revidendum Albeit the Acts of 24. H. 8. c. 12. and 25. H. 8. c. 19. do upon certain Appeals make the Sentence definitive as to any Appeal yet the King after such a definitive Sentence as Supreme may grant a Commission of Review ad Revidendum C. 4. Inst 341. And so it was resolved in the King's Bench. Trin. 39. Eliz. Hollingworth's Case Thus much may suffice to have been spoken concerning the Episcopal or Ecclesiastical Courts I proceed to the Sixth Particularity 6. By whom only Bishops are commanded to certifie IT is to be known that none but the King's Courts of Record Co. Litt. 〈…〉 4. 〈…〉 10◠〈◊〉 2. 〈…〉 325. as the Court of Common Pleas the King's Bench Justices of Goal-Delivery and the like can write to the Bishop to certifie Bastardy Mulierty Loyalty of Matrimony and the like Ecclesiastical Matters For 't is a Rule in Law that none but the King can write to the Bishop to certifie and therefore no inferior Court as London Norwich York or any other Corporation can write to the Bishop to certifie but in those Cases the Plea must be removed into the Court of Common Pleas and that Court must write to the Bishop and then remand the Record again And this was done in respect of the Honour and Reverence which the Law gave to the Bishop being an Ecclesiastical Judge and a Lord of Parliament by reason of the Barony which every Bishop hath And this was the reason a Quare Impedit did lie of a Church in Wales in the County next adjoyning for that the Lordships Marchers could not write to the Bishop neither shall Cognizance be granted in a Quare Impedit because the Inferior Court cannot write to the Bishop And herewith agreeth Antiquity Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bracton 7. Bishops Proceedings in Ecclesiastical Courts under the Name Style Seal of the Bishops how warrantable At the Session of Parliament holden Anno 4 o. Jac. Co. 2. I◠〈…〉 685 686. 〈◊〉 Lib. 12 〈◊〉 upon a Branch of an Act made at the first Session in the first Year of King James his Reign for Continuance and Reviving divers Statutes it was enacted that an Act made in the first Year of Queen Mary Stat. 2. c. 2. entituled An Act for Repeal of certain Statutes made in the time of King Edward the sixth should stand repealed and void A doubt was moved concerning the Bishops which was divided into two Questions 1. Whether any Bishop made especially since the first day of that first Session of Parliament were lawful or no 2. Whether the Proceedings in the Bishops or other Ecclesiastical Courts being made under the Name Style and Seal of the Bishops were warranted by Law And the reason of these two Doubts was this By the Statute of 1 E. 6 c. 2. it was enacted that Bishops should not be Elective
f. 97. a 134. a. 344. a. Co. 2. Inst. f. 3. Stat. 25. E. 1. Carlisle that all Arch-Bishops and Bishops of England have been founded by the Kings of England and therefore it hath been declared in Parliament that the Holy Church of England was founded in the State of Prelacy within this Realm by the King and his Progenitors But here then may be queried who were the first Founders of the Bishopricks in Wales It is answered 10. H 4.6 b. Co. Litt. 97. â—â—o 2. Inst. f. 195. On the Stat. of West 1. c. 17. That the Bishopricks in Wales were founded by the Princes of Wales and the Principality of Wales was holden of the King of England as of his Crown and when the Prince of Wales committed Treason Rebellion c. the Principality was forfeited and the Patronages of the Bishops annexed to the Crown of England So as the King is to have Pensions for his Chaplains and Corodies for his Vadelers of them as of Bishops founded by himself 2. To whom the Custody of the Spiritualties and Temporalties of Bishops do appertain Sede Vacante Co. 2. Inst 15. West 1. c 21. Magna Charta 5. Prerog Regis c. 14. Rolls Abr. 2. p. f. 223. THe Custody of the Temporalties of every Arch-Bishop and Bishop says Coke within the Realm and of such Abbies and Priories as were of the King's Foundation after the same became void belonged to the King during the Vacation thereof by his Prerogative For as the Spiritualties belonged during that time to the Dean and Chapter de Communi Jure or to some other Ecclesiastical Person by Prescription or Composition so the Temporalties came to the King as Founder And this doth belong to the King being Patronus Protector Ecclesiae in so high a Prerogative incident to his Crown as no Subject can claim the Temporalties of an Arch-Bishop or Bishop when they fall by Grant or Prescription 3. How Bishops were and how now made IT is apparented by our Books of Law and History Co. Lit. f. 134. a. 344. a. Co. Lib. 3 Dean and Chapt. of Norwich 's case Rolls Rep. 2. part f. 102. Davy's Rep. f. 46. a. de Capitulariter congregatis that at the first all the Bishopricks in England were Donative per Traditionem Baculi i. e. the Crosier which was the Pastoral Staff and Annuli the Ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them elective refused it But King John by his Charter bearing Date Quinto Junti Anno Decimo Septimo granted that the Bishopricks should be Eligible which afterwards was confirmed by divers Acts of Parliament And afterward the manner and order as well of Election of Arch-Bishops and Bishops as for the Confirmation of the Election and Consecration is enacted and expressed in the Statute of the Twenty fifth of Henry the Eighth But by the Statute of the thirty first of Henry the Eighth and the first of Edward the Sixth they were made Donative by the King's Letters Patents Both which Statutes are repealed and the Statute of the twenty fifth of Henry the Eighth doth yet remain in full force and effect 4. Their Jurisdiction what and whence derived AS to the Jurisdiction and Authority that appertains to Bishops are considerable two Particulars 1. Whence this Jurisdiction is derived 2. The Extent and Subject Matters of this Jurisdiction 1. Whence derived The King of England is and of Right always was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his Dominions And this is evident our by Books The Right Reverend Prelate Matthew Parker Arch-Bishop of Canterbury a man very expert in matters of Antiquity affirms in his Book set forth in Latin Anno Domini Co. lib. 9. Hensloes Case 1573. Quod Rex Angliae olim erat Conciliorum Ecclesiasticorum praeses vindex temeritatis Romanae Propugnator Religionis nec ullam babebant Episcopi Authoritatem praeter eam quam a Rege acceptam referebant Jus testamenti probandi non habebant Administrationis potestatem cuique delegare non poterant It was resolved in the Tryal touching Legitimation Davy's Reports f. 51. b. 52. a. and Bastardy that although all Matrimonial Causes have been a long time determinable in the Ecclesiastical Courts and are now properly within the Jurisdiction and Cognisance of the Clergy Vide Davy's Reports Le Case de Premunire 97. b. 98. a. Yet Ab Initio non fuit sic For as well Causes of Matrimony as Causes Testamentary were Civil Causes and apertained to the Jurisdiction of the Civil Magistrate as it is well known to all Civilians until the Christian Emperors and Kings for the honouring of Prelates of the Clergy have granted or allowed to them the Cognizance and Jurisdiction in those Cases And therefore the Kings of England although they have allowed the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertained to their Cognizance yet by the Rules of the Common Law he hath a Superintendency upon their proceeding with power of Direction when and how they shall proceed and of Restraint and Correction if they proceed not duely and orderly in many Cases as it is manifested by the Writs of several natures directed to the Bishops whereby the King commands them to certifie Bastardy Excommunication Profession Accouplement in Loyal Matrimony Of Admitting Clerks De Cautione Admittenda c. And also by Writs of Prohibition Consultation and Attachments for Prohibition 2. What is their Jurisdiction For the deciding of Controversies says Sir Edward Coke and distribution of Justice there be two distinct Jurisdictions The one Secular and General for that it is guided by the common and general Law of the Realm Co. Lit. f. 96. a. The other Ecclesiastical limited to certain spiritual and particular Cases and the Court wherein the Causes are handled is called Forum Ecclesiasticum in which the Bishops are Judges and immediate Officers to the King's Courts of Justice in Causes Ecclesiastical Now the Spiritual or Ecclesiastical Causes accarding to the usage and custom of England are Blasphemy Apostacy from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces General Bastardy Subtraction and Right of Tithes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Symony Incest Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical Cases Commutation of Penance All which are determined by Ecclesiastical Judges That the Reader may the better know the Extent and Latitude of the Episcopal Jurisdiction and Authority let him take with him these Rules that I have met withal in our Books 1. Rule That where the Right is Spiritual Co. Lit. 96 a. and the Remedy therefore only by the Ecclesiastical Law the Cognisance thereof doth appertain to the
Bailiffs shall not disable them for that they sue and answer by Attourney otherwise it is of a sole Corporation But if Executors or Administrators be excommunicated they may be disabled because they which converse with a Person excommunicate are excommunicate also If a Bishop be Defendant Co. Lit. 134. a. 9 A. 7.21 b. an Excommunication by the same Bishop against the Plaintiff shall not disable him and it shall be intended for the same Cause if another be not shewed Thirdly The several Writs that belong to it There are three sorts of Writs appertaining to Excommunications The one is called Excommunicato Capiendo Another named Excommunicato Deliberando The Third is styled Excommunicato Recipiendo Excommunicato Capiendo is a Writ directed to the Sheriff for the Apprehension of him that standeth obstinately excommunicated for forty days For such a one not seeking his Absolution hath or may have his Contempt certified or signified into the Chancery whence issueth this Writ for the laying of him up without Bail or Mainprize until he conform himself And when he is justified and hath made Agreement then the Bishop shall send his Letters to the King testifying the same and then it shall be commanded to the Sheriff to deliver him by a Writ called Excommunicato Deliberâ—â—do But if the Person excommunicated and for his Obstinacy being committed to Prison be inlawfully delivered thence before he has given Caution to obey the Authority of the Church then he is commanded to be sought for and laid up again by a Writ called Excommunicato Recipiendo My Lord Coke tells us Co. 2. 〈◊〉 â— 23. that if a Man be excommunicated and offer to obey and perform the Sentence and the Bishop refuses to accept it and to assoil him he shall have a Writ to the Bishop requiring him upon performance of the Sentence to assoil him c. And also the Party grieved may have his Action upon his Case against the Bishop in like manner as he may when the Bishop doth excommunicate him for a matter which belongeth not to Ecclesiastical Cognizance Also the Bishop in those Cases may be indicted at the Suit of the King Fourthly By whom Excommunication ought to be certified It is declared in our Books Co. Lit. 134. a. 12. â— 4.15.20 H. 6.17.11 H. 4.14 that none can certifie Excommengement but only the Bishop unless the Bishop be beyond Sea or in Remotis or one that hath ordinary Jurisdiction and is Immediate Officer to the King's Courts As the Arch-Deacon of Richmond or the Dean and Chapter in time of Vacation But in antient time every Official or Commissary might testifie Excommengement in the King's Court 11. H. 4.62 and for the mischief that ensued thereupon it was ordained by the King in Parliament that none should testifie Excommengement but the Bishop only If a Bishop certifie 33 E. 3. Excom 29. that another Bishop hath certified him that the Party which is his Diocesan is excommunicated this Certificate upon anothers Report is not sufficient If the Bishop certifieth the Excommunication under Seal â—4 E. 3. Excom â— albeit he dieth yet the Certificate shall serve And it is to be observed Co. 2. Inst 623.28 E. 3.97.14 H. 4 14. that at the Common Law a Certificate of the Bishop whereupon a Significavit that is a Writ De Excommunicato Capiendo was to be granted ought to express the Cause and the Suit against the Party especially in the Certificate But it may be queried whether an Excommunication and Certificate thereof by any Foreign Power can disable the Party It is answered 16. E. 3. Excom 4.4 H. 7.15.12 E. 4.15 that if the Bishop of Rome or any other having Foreign Authority doth excommunicate any Subject of this Realm and certifieth so much under his Seal of Lead this shall not disable the Party For the Common Law disallows all Acts done in disability of any Subject of this Realm by any Foreign Power out of the Realm as things not Authentick Whereof the Judges should give Allowance Fifthly The Power of Excommunication in a Christian Church A most Learned Doctor of our Church that he may give the Church her due and Caesar his asserts and proves these Particulars First That under the Gospel there is a Power in the Officers of the Church by virtue of Divine Institution to exclude any Offenders out of the Christian Society for transgressing the Laws of it The Second That this Power doth remain formally in the Church after its being incorporated into the Commonwealth The Third That after the Churches being incorporated into the Common-wealth the Right of Supreme Management of this Power in an External way doth fall into the Magistrates Hands consisting in these four things 1. A Right of prescribing Laws for the Management of Church-Censures 2. A Right of bounding the manner of Proceeding in Censures that in a settled Christian State Matters of so great weight be not left to the Arbitrary Pleasure of any Church-Officers 3. The Right of adding Temporal and Civil Sanctions to Church Censures and so inforcing the Spiritual Weapons of the Church with the more keen and sharp ones of the Civil State 4. To the Magistrate belongs the Right of Appeals in case of unjust Censure So that the Sum of all that has been said is this That though the Magistrate hath the main care of ordering things in the Church yet the Magistrates Power being Cumulative and not Privative the Church and her Officers retain the Fundamental Right of inflicting Censures on Offenders Thus much concerning the Superior Clergy containing the Arch-Bishops and Bishops I come now to treat of the Inferior Clergy under which are comprehended Deans Arch-Deacons Parsons Vicars Prebends and Chaplains SECONDLY OF THE INFERIOR CLERGY IT is to be known that of Spiritual Functions there be three Degrees 1. A Function which hath a Jurisdiction 2. A Spiritual Administration with a Cure 3. They who have neither Cure nor Jurisdiction Of these in their Order 1. Of a Function which hath a Jurisdiction UNder this Rank may be placed Deans and Arch-Deacons 1. Deans Dean in Latine Decanus which is derived of the Greek Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Co. Lit. 9â— a. that signifieth Tâ—â— for that he is an Ecclesiastical Secular Governor and was anciently over ten Prebends or Canons at the least Howbeit in England we use to call him a Dean that is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church and the rest of the Society or Corporation we call Capitulum the Chapter Now Co. Lit. 95. a. Of Chapters there be in our Law two kinds viz. The Antient and the Latter And the Latter be of two sorts 1. Those which were translated or founded by King Henry the Eighth in place of Abbots and Covents or Priors and Covents which were Chapters whilst they stood and these are new Chapters to old Bishopricks 2. Where the Bishoprick was newly founded by
Henry the Eighth as Chester and Bristow c. there the Chapters are also new There is a great Diversity between the coming in of the Antient Deans and the New For the Antient come in in much like sort as Bishops do For they are chosen by the Chapiter by a Cogue de Eslier as Bishops be and the King giving his Royal Assent they are confirmed by the Bishop But they which are either newly translated or founded are Donative and by the King's Letters Patents are installed Note The Word Dean is also applied to divers that are the Chief of certain peculiar Churches or Chappels As The Dean of the Ring 's Chappel The Dean of the Arches The Dean of St. Georges Chappel in Windsor The Dean of Bocking in Essex The Corporation consisting of Dean and Chapter they may joyntly purchase Lands and Tenements to the use of their Church and Successors And every one severally likewise may purchase to the use of himself and his Heirs Grants at this day Co. Lic 342. a. made by a Dean and Chapter or any other having any Spiritual or Ecclesiastical Living are restrained by Act of Parliament so as they cannot grant any Rent-Charge or make any Alienation or any Leases to bind their Successors other than for Term of twenty one Years or three Lives in Possession whereupon the accustomed Rent or more shall be reserved 2. Arch-Deacons Arch-Deacons in Latine Archi-Deacanus and in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ex 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Princeps 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Minister is styled Oculus Episcopi Whose Court is to be holden as is said before where and in what places he either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Arch-Deaconry And from him the Appeal is to be Diocesan It has been resolved Hobart 's Reports Hutton 's Case that if a Suit be before an Arch-Deacon whereof by the Statute of the twenty third of Henry the Eighth the Ordinary may license the Suit to an higher Court that the Arch-Deacon cannot in such Case bawlk his Ordinary and send the Cause immediately into the Arches For he hath no power to give a Court but to remit his own Court and to leave it to the next For since his Power was derived from the Bishop to whom he is subordinate he must yield it to him of whom he received it And it was said that so it had been ruled heretofore 2. Of a Spiritual Administration with a Cure UNder this Form I place Parsons and Vicars 1. Parsons Parson in Legal Signification is taken for the Rector of a Church Parochial and is called Persona Ecclesiae because he assumeth and taketh upon him the Parson of the Church and is said to be siezed in Jure Ecclesiae And the Law had an excellent end herein viz. That in his Person the Church might sue for and defend her Right and also be sued by any that had an elder and better Right And when the Church is full it is said to be Plena Consulta of such a one Parson thereof that is full and provided of a Parson that may Vicem seu personam ejus gerere Persona Impersonata Parson Impersonate Co. Lit. 300. b. is the Rector that is in Possession of the Church Parochial be it Presentative or Impropriate and of whom the Church is full To every Church-Presentative there is a Patron and it is he that hath the Advowson of a Parsonage belonging to his Mannour or otherwise in Gross and thereby may or ought to give the same Benefice or present thereto when and as often as it falleth void And that is in case of Death Resignation Deprivation or Session as by taking a Benefice incompatible And this being Patron had beginning for the most part by one of these three ways namely Either by reason of the Foundation for that the Patron or his Ancestors Co. Lit. 119. b. or those from whom he claims were Founders or Builders of the Church Or By reason of Donation for that they did endow or give Lands to the same for maintenance thereof Or else By reason of the Ground because the Church was set or builded upon their Soil And many times by reason of them all three 2. Vicars For the beginning of Vicaridges the difference betwixt a Vicaridge and an Advowson and the several sorts of Vicaridges I refer my Reader to Davy's Reports f. 83. a. Cro. 2. p. s 518. and I shall only give him some little Information concerning Vicaridges by shewing him somewhat of Impropriations Impropriations or Appropriations were says my Author when those Houses of the Romish Religion and those Religious Persons as Abbots Priors and such like had the Advowson of any Parsonage to them and to their Successors and obtained License of the Pope and of the Ordinary and King that they themselves and their Successors from thenceforth should be Parsons there and that it shall be from thenceforth a Vicaridge and that the Vicar should serve the Cure And so at the beginning Appropriations were made only to those Persons Spiritual that could administer the Sacraments and say Divine Service As Abbots Priors Deans and such like After by little and little they were enlarged and made to others As namely to a Dean and Chapter which is a Body Corporate consisting of many which Body together could not say Divine Service And which was more To Nuns that were Prioresses of some Nunnery which was a wicked thing In so much as they could neither administer Sacraments nor preach nor say Divine Service to the Parishioners And all this was for pretence of Hospitality and maintenance thereof And to supply these defects a Vicar was devised who should be Deputy to the Priors or to the Dean and Chapter and also at the last to the said Abbots and others to say Divine Service and should have for his labour but a little Portion and they to whom the Appropriations were made should retain the greater Revenues and they did nothing for it By means whereof Hospitality decayed in the place where it ought to have been chiefly maintained namely in the Parish where the Benefice was and where the Profits did grow And so it continues to this day to the great hinderance of Learning to the Impoverishment of the Ministery and to the Infamy of the Gospel and Professors thereof To this Learning of Impropriations I shall add the very words of him that was the Glory of his Age and Nation In mine Opinion Lord Bacon and Sense says he I must confess let me speak it with Reverence that all the Parliaments since the twenty seventh and thirty first of Henry the Eighth who gave away Impropriations from the Church seem to me to stand in a sort obnoxious and obliged to God in Conscience to do somewhat for the Church to reduce the Patrimony thereof to a Competency For since they have debarred Christs Wife of a great part of her Dowry