incroach upon them by Papal Provisions Cum igitur à primâ Christianitatis Fundatione in Angliâ tali fuerint hactenus progenitores nostri gavisi libertate quod decedentibus Ecclesiarum Rectoribus Ecclesiarum Patroni Personas idoneas eligentes ad easdem Diocesanis praesentaverunt ab eisdem Ecclesiarum Regimini praeficiendas These are words of great Weight and do plainly shew that the Right of Patronage consisted in the Nomination of Fit Persons to the Bishop of the Diocese for any vacant Places but that the Bishops were if they approved them to put them into the Possession of them In the time of Innocent III. the King wrote to the Pope that the Nobility and Bishops of England did insist upon it as their Right by the Ancient Custom to build Churches on their own Lands and the Pope yielded it to the Laity provided that they had the Consent of the Bishop of the Diocese and that the Rights of former Churches were not prejudiced thereby But saith Mr. Selden they challenged it without Licence What to do To build Churches on their own Lands but not a word of putting-in any Incumbents by their own power without the Bishop's Consent and Approbation Nay it appears that they could not build Churches on their own Lands without the Bishops Allowance Mr. Selden would fain have it believed That the Right of Presentation to the Bishop of the Diocese came in by the Canon Law about A. D. 1200. But the Insinuations of that kind as they are frequent in his Book of Tythes so they do shew his want of Skill or Ingenuity at that time as much as any one part of it But I need go no farther than this Letter of the Nobility to the Pope who were extremely jealous of their Rights of Patronage and yet they challenged nothing thereby but a Right of Nomination of a Fit Person to the Bishop of the Diocese not a word of Investiture or Collation by the Patron which Mr. Selden talks of He doth not deny That after A. D. 1200 it was the undoubted Law of England for the Patrons to present to the Bishops But I say it was the Law of England before ever the Decretals were made it was the Original and Fundamental Law of the English Church and as Ancient as the Right of Patronage In the same Epistle they desire the Pope to leave them to their ancient Liberty which was Personas idoneas praesentare But who is to be Judge of the Fitness of the Persons For that we have a full Declaration of the Ancient Law and Custom of England in Artic. Cleri c. 13. De Idoneitate Personae praesentatae ad Beneficium Ecclesiasticum pertinet Examinatio ad Iudicem Ecclesiasticum ita est hactenus usitatum fiat in posterum Upon which my Lord Coke saith That the Examination of the Ability and Sufficiency of the Person belongs to the Bishop who is the Ecclesiastical Iudge and in this Examination he is a Iudge and not a Minister and may and ought to refuse the Person presented if he be not Persona idonea And that this was no new Law appears by the words That it had been hitherto so used and should be so for the time to come And so Coke truly saith that this Act was but a Declaration of the Common Law and Custom of the Realm So that the Bishops Power of Examining and Iudging the Fitness of the Person presented is a part of the Common Law of England 15 H. 7. 8. It is declared by all the Judges That the Bishop in the Examination of a Clerk is a Iudge and not a Minister And if he misbehaves himself he is to be punished as a Iudge 18 H. 7. Keilway saith That the Bishop may refuse for Insufficiency and is to give notice to the Patron It was Resolved by the Court in Specot ' s Case That the Court is to give Credit to the Bishop acting Iudicially but then it is said That the Plea must be special and certain And so Coke saith that in a Quare Impedit brought against the Bishop for Refusal of his Clerk he must shew the Cause of his Refusal specially and directly But it was the Opinion of Lord Chief Justice Anderson That in things not Triable at Common Law a General Plea was sufficient But when the Case came to the King's Bench 32 Eliz. it was there said That the Articuli Cleri mention a Reasonable Cause which say they must be Special for Causa vaga incerta non est rationabilis But the main point is Who is to judge what is a Reasonable Cause and I cannot but think that Anderson's Opinion is the truest and most Reasonable If it be for a matter Triable at Common Law that Court is to judge but if not I do not see how it can be avoided but the Bishop must judge and his Judgment of Insufficiency must be taken as well as in any Certificate whatsoever For if the Law trust him with the Judgment of a Matter proper for him to judge of other courts which have no Cognizance of it must give credit to such a Certificate or else they must take upon them to judge in Matters that are not of their Cognisance which is to confound the Jurisdiction of Courts I grant the Judgment of the Bishop is not Conclusive but the Appeal then lies to the Supreme Ecclesiastical Court and the Metropolitan is to be Judge of the Sufficiency of the Person But is not this a great Prejudice to the Right of Patrons if the Bishops are to judge of the Fitness of Persons presented and so the Patrons Presentation may signify nothing if the Bishop pleases This is a Trust which the Law reposes in the Bishop and it lies upon his Conscience to act sincerely in this matter and in case of Examination of Fit Persons a Trust must be placed somewhere and in whom more properly than in the Bishop of the Diocese to whom the Care of it doth especially belong and that by as plain Law as any we have Are not all Judges trusted in Matters that come before them But this is no Decisive Judgment for an Appeal lies according to the Nature of the Matter And this is no other Trust than hath been allow'd in all other Christian Nations where the Rights of Patronage are owned Iustinian owns it several times in his Novels not only that the Bishops are to Examine and Approve those who are nominated by Founders of Churches but if they find them unworthy they may put others in their room By the Capitulars or old Ecclesiastical Laws of France the Lay Patrons are not only to present to the Bishop such as were Probabilis Vitae Doctrinae but if upon Examination they found them otherwise it was in their power to reject them As to the Canon Law there can be no Dispute in this Point but if the Bishop refused an Appeal did lie
to the Pope and if he were unjustly refused the Bishop was bound to provide for him but during the Appeal the Patron might present another whom if the Bishop approved the Appeal did fall Rebuffus a noted Lawyer saith That it is a damning Sin in a Bishop not to Examine the Fitness of those who are presented by Patrons And a late learned French Canonist saith Those are to blame who lay the Fault of so many unworthy Men being in Places on the Lay Patrons for saith he the Bishops are to blame who are bound to Examine and if they see Cause to reject them So that we have not only our own Law but the General Consent of the Christian World where the Right of Patronage is allow'd as to the Bishops Right of Examining and Iudging the Fitness of Persons presented to Benefices 2. The Right of Collation upon Lapse belongs to the Bishop notwithstanding the Right of Patronage It is said by Lord Hobart That a Lapse is not an Interest naturally but a meer Trust in Law and afterwards That the Ordinary or he that is to present by Lapse is as a kind of Attourney made by Law to do that for the Patron which it is supposed he would do himself if there were not some lett and therefore the Collation by Lapse is in the Right of the Patron and for his Turn This seems to me to be a mistaken Notion of a Lapse for the true Question is Whether upon a Lapse the Ordinary doth collate Iure pleno or Iure devoluto Some French Lawyers held the latter but Car. Molinaeus and others utterly reject that Opinion for this Reason Because Churches and Dioceses were Iure communi under the Care of the Bishops but it was by particular Indulgence that the Patrons had the Right of Presentation which being neglected things do return to Common Right and therefore the Bishop hath a true Interest and acts not in the Right of the Patron but his Own It 's true there is a Devolution afterwards by our Law for as the Author of the Doctor and Student saith The Law of the Realm is that if a Benefice falls void then the Patron shall present within six Months and if he do not that then the Ordinary shall present but yet the Law is farther in this Case that if the Patron present before the Ordinary put-in his Clerk that then the Patron shall enjoy his Presentment and so it is though the time should fall to the Metropolitan For as he saith by our Law if the Bishop doth not collate within six Months then the Metropolitan presents But this is by a Right of Devolution and then why not the other The Answer is That the Bishop is Ordinary of the Diocese and therefore it comes to him of Common Right but it falls to the Archbishop not as Ordinary but as Superiour to whom the Right of Devolution falls upon the Inferiour's Neglect For although in some respects and in the Excepted Cases the Archbishop may be said to be Ordinary of the whole Province yet that is not so much in respect of Immediate Iurisdiction which Hobart and others say was by virtue of the Legatine Power which was annexed to his See But the Archbishop hath a Power as Metropolitan to supply the Defects of the Suffragans of his Province and so this Right of collating upon defect of the Ordinary comes to him by Right of Devolution But how then comes the King to his Right after the Metropolitan's Neglect That is say our Lawyers Because the King is Patron Paramount of all the Benefices within the Realm The meaning is That the King by Right of his Crown is to see that all Places be duely supplied with Persons fit for them and if all others whom the Law hath entrusted do neglect their Duties then by the natural Order and Course of Government it falls to the Supreme Power which is to supply Defects and to reform Abuses 3. The Bishop hath the Right of making an Avoidance by Deprivation or Resignation For as he hath the Power of putting-in so the Law hath lodged in him the Judicial Power of proceeding against Offenders and hath not left that to the Judgment of the Patron If we enquire Who by our Law is made the proper Judge of a Beneficed Person whether he behaves himself so as to deserve to lose his Benefice Will any one say that the Law hath put this into the Patron 's hands Yet all those who justify these Bonds of Resignation must in Effect say that the Patrons are the proper Judges for they have the real Power of Deprivation in their Hands and may execute it when they please Which is such an Arbitrary Jurisdiction as would be thought intolerable in other Hands In all Causes of Deprivation of a Person actually possessed of a Benefice these things must concur 1. A Monition or Citation of the Party to Appear 2. A Charge given him to which he is to Answer called the Libel 3. A Competent Time assigned for the Proofs and Answers 4. A Liberty for Counsel to defend his Cause and to except against the Proofs and Witnesses 5. A Solemn Sentence after hearing all the Proofs and Answers These are the Fundamentals of all Judicial Proceedings in the Ecclesiastical Courts in order to a Deprivation and if these things be not observed the Party hath just cause of Appeal and may have Remedy by a Superiour Court And these Proceedings are agreeable to the Common Justice and Reason of Mankind because the Party accused hath the liberty of Defence and the Right of Appeal But there is nothing of all this in Bonds of Resignation for the Patron takes the Advantage of the Forfeiture of the Bond and so without any Trial or Proof or Sentence deprives him of his Benefice Some who are no Friends to the Ecclesiastical Courts would have no Deprivation of a Benefice but by Proceedings at Common Law because it is a Freehold Suppose that it were so which seems contrary to the course of the Law for the Bishop in a Plea to a Quare Impedit saith Nihil clamat praeter Institutionem Destitutionem Clericorum and Ecclesiastical Deprivations have been still allow'd at Common Law if they have been according to the Ecclesiastical Laws but taking it for granted that a Deprivation of a Freehold ought to be at Common Law what then what without an Indictment and without a Trial by a Jury No Hearing of the Cause no Witnesses examin'd no Counsel to be heard no Judgment by his Peers And can this be agreeable to the Fundamental Laws of England to have Men forced out of their Freeholds in such an Arbitrary manner What would they think if other Freehold Estates which hold of a Superiour Lord were made so Arbitrary as to Depend upon the Will of the Lord so as to be turned out upon six Months notice Let us see Bonds of Resignation practised upon such Estates and then
what Bargains they think fit who mind not the Men but the Advantage they are to get by them And there is a just Presumption that those are not very Deserving who are ready to drive such Bargains for themselves and such Men are not to be valued as Cattle in a Market by the Money they will yield 2. That Lawyers would not encourage their Clients in indirect methods of obtaining Presentations For here lies a great part of our present Mischief the Clergymen who want Benefices They say We are Ignorant of the Law but we go to those whose business it is to understand it and they tell us they have Cases and Precedents in their Books for such Bonds and they have been many times adjudged in the Courts of Law to be good and therefore why are we to blame if we submit to them But here lies the great Mistake the Point is really a Point of Conscience as to the Oath but the Question put to them can be only a Point of Law who are to give Judgment upon the Statute and according to the Rules of Judgment allowed in their Courts But I cannot but observe that there is no Precedent offer'd before 8 Iac. 1. and in the 15th was a contrary Judgment In the Beginning of Charles I. the former Judgment was affirmed and from hence it hath come to be such a prevailing Opinion I confess that I am not satisfied how far such Precedents or one or two Judicial Sentences make a thing to pass for Law nor whether the Authority of such a Sentence or the Reason is to give the Force of Law to it I observe that my Lord Coke when he speaks of the Laws of England he reckons up Common-Law Statute-Law Customs reasonable c. but he never mentions the Judgment of the Courts as any Part of our Law they being no more but a Declaratory Sentence of the Majority of the Judges when it may be the other differ upon better Reasons and when such Reasons come to be thought better by one more at another time then the contrary must pass for Law on the same grounds How often do we hear that the Judges were divided in their Opinions in point of Law How often that the greater number went one way but Law and Reason on the other Suppose a Lord Chief Justice of great Skill and Knowledge in the Law to be unequally yoked with others of far less Judgment how is it possible to prevent that Judgment shall not be given on the wrong side if the three happen to be of an Opinion against him or one be absent and two be against one In a late great Cause viz. of Commendam although three Judges concurred in Opinion and the General Practise was allowed to be of that side yet because one Judge differ'd from the rest his Authority was produced against the Sentence of the Court and for what Cause can this be but the Supposition that it is not the Sentence but the Reason which makes the Law My Lord Chief Justice Hales in a MS. Discourse of the History and Analysis of the Laws of England Chap. 4. makes three Constituents of the Common Law of England 1. The Common Usage and Custom 2. The Authority of Parliament 3. The Iudicial Decisions of Courts of Iustice but how Consonant to one another in the Series and Succession of Time This is spoken with great Judgment For no doubt a mighty Regard ought to be shewed to a Concurrent Sense of so many Persons of Ability in the Law in the different Times wherein such Matters have been before them and this is the highest Authority for expounding the Law but it cannot amount to the Making of a Law For as the same Excellent Person adds It is true the Decisions of Courts of Iustice although by the strength of the Law of this Kingdom they do bind as a Law between the Parties to it in that particular Case in Question till Reversed by Error or Attaint yet they do not make a Law for that only the King by the Assent of Parliament can do All that I aim at is not in the least to take off from the Authority and Reverence due to Judicial Decisions built upon a General Agreement from time to time or upon Evident Reason in point of Law but only that things should not be so positively asserted to be Law which are built only on a few Modern Precedents without any convincing Evidence Which I take to be the present Case 3. That the Clergy would mind their own Honour and Interest and that of the Church and Religion so much as not to Accept of Benefices upon such Ensnaring Terms as those of Bonds of Resignation If what I have said on this Argument be true I am sure they have all the Reason in the World to Refuse them when they know not what the Consequence of them may be and they do know what kind of Oath they are to take And no Man can honestly take an Oath that is not satisfied that such Bonds are no Simoniacal Contract in the Sense of that Law by which he is required to take the Oath Now the Oath is not imposed by the Courts of Common Law in pursuance of the Statute for then it were to be understood according to the Sense and Meaning of it but that very Statute leaves the Ecclesiastical Laws as they were by which Simony is of a larger Extent than it is understood at Common Law and by those Laws this Oath is required Therefore my Request is to all such Clergymen as are in danger of having such put upon them that they would study the Case and satisfy their Minds before they venture upon taking an Oath which may afterwards rob them of that Peace and Tranquillity of Mind which every Good man will Esteem above any Benefice in the World FINIS Page 73. lin 13. for Gays read Gayr Ibid. Marg. for Mar. read Moor. A Catalogue of Books published by the Right Reverend Father in God Edward Lord Bishop of Worcester and sold by Henry Mortlock at the Phoenix in St. Paul's Church-Yard A Rational account of the Grounds of Protestant Religion being a Vindication of the Lord Archbishop of Canterbury's Relation of a Conference c. from the pretended Answer of T. C. wherein the true Grounds of Faith are cleared and the false discovered the Church of England vindicated from the imputation of Schism and the most important particular Controversies between us and those of the Church of Rome throughly examined the second Edition Folio Sermons preached upon several Occasions with a Discourse annexed concerning the true Reasons of the Sufferings of Christ wherein Crellius his Answer to Grotius is considered Folio Origines Britannicae or the Antiquities of the British Churches with a Preface concerning some pretended Antiquities relating to Britain in vindication of the Bishop of St. Asaph Folio Irenicum A Weapon Salve for the Churches Wounds Quarto Origines Sacrae or a Rational Account of