Present within Four months next after the Church becomes void but if the Patronage be Ecclesiastical then within Six cap. unico de Jur Patronat in 6. Concerning Appropriations of Churches the first thereof since the Conquest appears to be that of Feversham and Middleton in Kent An. 1070. granted by William the Conquerour to the Abbey of St. Austins in Canterbury in manner following viz. In Nomine c. Ego Willielmus c. ex his quae omnipotens Deus sua gratia mihi largiri est dignatus quaedam concedo Ecclesiae S. Augustini Anglorum Apostoli c. pro salute Animae meae Parentum meorum Predecessorum Successorum haereditario jure haec sunt Ecclesiae Decimae duarum Mansionum viz. Feversham Middleton ex omnibus redditibus qui c. omnibus ibidem appendentibus terra sylva pratis aqua c. Haec omnia ex integro concedo S. Augustino Abbati Fratribus ut habeant teneant possideant in perpetuum which was afterward Confirmed by Pope Alexander the Third and Ratified by Theobald Archbishop of Canterbury together with an Establishment and Ordination of a Vicarage by the said Archiepiscopal Authority in each of the said Churches respectively The like you have for the Appropriating of three other Churches to the same Abbey viz. of Wyvelsberg Stone and Brocland in Kent by the Charter of Ed. 3. above Three hundred years since Confirmed by Pope Clement's Bull and Ratified by Simon Mepham then Archbishop of Canterbury with his Establishment of Three perpetual Vicarages to the said Churches Which Charter is to this effect viz. Nos de gratia nostra speciali pro C. Libris quas praefati Abbas Conventus nobis solvent c. Concessimus Licentiam dedimus pro Nobis haeredibus nostris quantum in Nobis est ejusdem Abbati Conventui quod ipsi Ecclesias praedictas Appropriare eas sic Appropriatas in proprios usus tenere possint sibi Successoribus suis in perpetuum nisi in hoc Quod Nos tempore vacationis Abbatiae praedictae si contigerit Ecclesias praedictas vel aliquam earundem tunc vacare Nos Jus Praesentandi ad easdem amitteremus sine occasione vel impedimento Nostri vel haeredum nostrorum quorumcunque Hujus Data est sub An. Do. 1349. The Modern Church-Historian of Britain in his Eleventh Book pag. 136. calls to remembrance That about An. 1626. there were certain Feoffees a whole dozen of them though not incorporated by the Kings Letters Patents or any Act of Parliament yet Legally he says settled in Trust to purchase in Impropriations and that it was incredible how then possible to be believed what large Sums were advanced in a short time towards that work But then withal tells us somewhat that is Credible viz. That there are 9284 Parochial Churches in England endowed with Glebe and Tithes but of these when the said Feoffees entered on their work 3845 were either Appropriated to Bishops Cathedrals and Colledges or Impropriated as Lay-Fees to Private persons as formerly belonging to Abbeys The Redeeming and Restoring he does not mean to the Abbeys was the design of these Feoffees as to those in the hands of Private persons but re infecta the Design proved abortive A Commendam or Ecclesia Commendata so called in contradistinction to Ecclesia Titulata is that Church which for the Custodial charge and government thereof is by a revocable Collation concredited with some Ecclesiastical person in the nature of a Trustee vel tanquam fidei Commissarius and that for the most part only for some certain time absque titulo for he that is Titularly Endowed hath the possession of the Church in his own Name and in his own proper Right during his life hence it is that in the Canon Law a Church collated in Commendam and a Church bestowed in Titulum are ever opposed as contraries vid. Hist Concil Trident. lib. 6. pag. 600. Duaren de Benefic lib. 5. cap. 7. Thus King Edgar Collated Dunstan Bishop of Worcester to the Bishoprick of London by way of Commendam Rex Edgarus says Radulph de Diceto in his Abbreviat Chronicorum Lundoniensem Ecclesiam proprio Pastore viduatam commisit regendam Dunstano Wigornensi Episcopo Et sic Dunstanus Lundoniensem Ecclesiam Commendatam habuit non Titulatam dict Radulph de An. 962. It is supposed that the first Patent of a Commendam retinere granted in England by the King to any Bishop Elect was that which King Henry the Third by the advice of his Council in imitation of the Popes Commendams then grown very common granted by his Letters Patents to Wengham then Chancellor of England notwithstanding his insufficiency in the knowledge of Divinity to hold and retain all his former Ecclesiastical Dignities and Benefices whereof the King was Patron together with his Bishoprick he then succeeded Fulco Bishop of London for so long time as the Pope should please to grant him a Dispensation whose Dispensation alone would not bar the King to Present to those Dignities and Benefices being all void in Law by making him a Bishop He had also the like Patent of Commendam retinere as to his Benefices and Ecclesiastical Preferments in Ireland And this Patent of such a Commendam being made by the King his Lords and Judges is for that reason the more remarkable vid. Le Hist. of the Church of Great Britain pag. 84. According to the proper and ancient Account Commendams were originally introduced in favour and for advantage of the Church which is Commended in favorem utilitatem Ecclesiae quae Commendatur Imola in ca. Nemo de Elect. in 6. says that Commendams are not to be Nisi ex evidenti Ecclesiae Commendatae necessitate vel utilitate The distinction of Temporal and Perpetual Commendams in the Canon Law is of no great use with us indeed in the Church of Rome according to the former mode of Commendams a vacant Church is Commended either by the Authority of the Pope if it be a Cathedral ca. penult ult 21. q. 1. or by the Authority of the Bishop if it be a Church Parochial This is commonly Temporal or for Six months and is in utilitatem Ecclesiae the other commonly Perpetual and are magis in subventionem eorum quibus commendantur quam ipsarum Ecclesiarum And a Commendatary for life is the same in reality with the Titular These Commendams in their Original were Instituted to a good purpose but after used to an evil end For when by reason of Wars Pestilence or the like the Election or Provision could not be made so soon as otherwise it might the Superiour did Recommend the vacant Church to some honest and worthy person to govern it besides the Care of his own until a Rector were provided who then had nothing to do with the Revenues but to govern them and consign them to another But in process of
of a Bishop may not be without the consent of the Dean yet this we find upon Record nigh as Ancient as the former That where at present there was no Dean there the Election of the Bishop hath been by the Canons alone Canonici Saresbirienses Decanum non habentes ad praesens à Rege prius impetrata Licentia Fratrem suum Concanonicum Herebertum Cantuariensem Archidiaconum Assensu Communi solemniter in Episcopum Elegerunt Electionem factam in Publico recitavit Walterus Praecentor Electioni factae praebuit Rex Assensum quam Hubertus Cantuariensis Archiepiscopus Auctoritate propria Confirmavit c. Consonant to which method is the Act of Parliament made in the 25. of H. 8. whereby it is Enacted That on the vacancy of every Bishoprick his Majesty should issue out his Writ of Congé d'Eslire to the Dean and Chapter of the Church so vacant enabling them to proceed to Election of another Bishop which Election being returned by the said Dean and Chapter and ratified by the Royal Assent his Majesty should issue out his Writ to the Metropolitan to proceed to the Confirmation of the party Elected and taking to himself two other Bishops at least to proceed to Consecration in case he had not before been Consecrated Bishop of some other Church The place of Consecration of Bishops was anciently at Canterbury as the Mother-Church not only of that Province but of all England For when in the time of R. 1. An. 1192. a Bishop of Worcester Elect was to be Consecrated and Westminster the place design'd for that solemnity according to the Popes Command it was opposed by the Prior and Covent of christ-Christ-Church in Canterbury and at a time when the Archbishop thereof whose presence could not but have strengthned that opposition was absent yet the said Prior insisting on the Priviledges and Customes of the Church of Canterbury opposed the said place of Consecration as appears by his Letter to the Bishop of Ely the Popes Legate and other Bishops of that Province in haec verba Reverendis in Christo Dominis Fratribus W. Dei gratia Heliensi Episcopo Apostolicae sedis Legato Domini Regis Cancellario caeterisque Episcopis Cantuariensis Ecclesiae Suffraganeis O. Prior Conventus Ecclesiae Christi Cantuariae salutem ab Auctore salutis Noverit Sanctitas vestra Nos ad sedem Apostolicam appellasse ne Wigorniensis Electus alias quam in Ecclesia Cantuariensi sicut moris est Consecretur ne quis vestrum qui indemnitati Ecclesiae Cantuariensis vinculo Professionis providere tenemini alias quam in eadem Ecclesiâ ejus Consecationi interesse praesumat And at a Synod held at Westminster under P. Honorius 2. in the Reign of H. 1. An. 1126. it was Ordained That at the Consecration of Bishops nothing should by way of Offerings be exacted or by force required Statuimus Apostolica Authoritate Decernimus ut in Consecrationibus Episcoporum c. nil omnino per violentiam nisi sponte oblatum fuerit penitus exigatur Simeon Dunelm Hist de Gest Reg. Angl. The like you have Decreed at another Synod held also at Westminster under P. Innocent 2. in King Stephens Reign An. 1138. Apostolica authoritate Sancimus ut in Consecrationibus Episcoporum ne quicquam ab Episcopo vel Ministris ejus exigatur Hist Richard Prioris Hagustald de Gest Reg. Steph. In the year 1123. which was in the Reign of H. 1. at the Council of Three hundred Bishops conven'd at Rome P. Calixtus 2. being President it was Decreed That no Bishop should be Consecrated unless he were first Canonically Elected Nullus in Episcopum nisi Canonice Electum Consecret quod etsi praesumptum fuerit Consecratus Consecrator absque recuperationis spe deponatur dict Sim. Dunelm Hist As that Canon was not in being so the matter thereby ordained in all probability was far from being observed when Plegmundus Archbishop of Canterbury whom P. Formosus honoured with the Pall Consecrated no less than Seven Bishops in one day in the two and twentieth year of King Alured Chron. Johan Bromton Abbatis Jornalensis When a Bishop is Consecrated then may he Consecrate viz. Churches c. and may Ordain Deacons c. But it was long since provided by the Council of Lateran under P. Alexander That the Bishop should not confer Holy Orders on any that were not then or speedily to be provided with an Ecclesiastical Living Episcopus si aliquem sine certo Titulo de quo Necessaria vitae percipiat in Diaconum vel Presbyterum Ordinaverit tam diu ei necessaria subministret donec ei in aliqua Ecclesia Convenientia stipendia militiae clericalis assignet nisi talis forte qui Ordinatur extiterit qui de sua vel paterna haereditate subsidium vitae possit habere Can. 9. And as touching the Bishops Consecrating of Churches it being vulgarly supposed that there is a considerable piece of Superstition therein it cannot but be seasonable here to enquire whether so or no or whether the Consecration of Churches be not truly Primitive according to the Judgment of the Learned Dr. Heylin To which purpose you have here his very words viz. The place of Publick Worship is called generally according to the style of the Ancient Fathers by the name of the Church For Consecrating or setting apart whereof to Religious uses I find says he so great Authority in the Primitive times as will sufficiently free it from the guilt of Popery Witness the Testimony which Pope Pius gives of his Sister Eutorepia in an Epistle to Justus Viennensis An. 158. or thereabouts for setting apart her own House for the use and service of the Church Witness the Testimony which Metaphrastes gives of Felix the First touching his Consecrating of the House of Cicilia about the year 272. And that which Damasus gives unto Marcellinus who succeeded Felix for Consecrating the House of Lucinia for Religions uses Witness the famous Consecration of the Temple of the Holy Martyrs in Jerusalem Founded by Constantine the Great at which almost all the Bishops in the Eastern parts were summoned and called together by the Emperours Writ and finally not to descend to the following Times witness the 89th Sermon of St. Ambrose entituled De Dedicatione Basilicae Preached at the Dedication of a Church built by Vitalianus and Maianus and the Invitation of Paulinus another Bishop of that Age made by Sulpitius Severus his especial Friend Ad Basilicam quae prorexerat in Nomine Domini consummabitur Dedicandum to be present at the Dedication of a Church of his Foundation Heyl. Cyprian Angl. p. 12. The Decree of Faith made by the Council of Trent was attended with no less than Eight Anathematisms the first whereof was against him that shall say that there is no visible Priesthood in the New Testament nor any power to Consecrate c. For in the beginning of that Decree it is affirmed That there is a visible and
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 accâssu 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
own destruction ãâã ãâã ãâã ãâã ãâã Blasphemare that is convitiis incessere to speak reproachfully and wickedly of God to ascribe to the Creature what belongs only to God vel ab eo removere quod illi convenit says St. Ambrose or to preferr a False god before the True God Rev. 13. 1. This kind of Blasphemy referrs chiesly to God the Father There is Blasphemy likewise which referrs to God the Son such was the Blasphemy of the Pharisees when they said of Christ That he was a man gluttonous and a Wine-bibber c. This they might probably say out of their ignorance of his Person and therefore a much inferiour Blasphemy to that against the Holy Ghost which is ever against Conscience and out of Envy and Malice Bartolus is of opinion That there is a Blasphemy also which referrs to Men. Bart. in l. Item apud § ait Praetor ff de Injur But this is not that Blasphemy here intended although that Opinion seems to be back'd with good Authority 1 Cor. 4. 13. Tit. 3. 2. yet St. Austin who understood this matter better than Bartol was of another opinion Est autem Blasphemia says he cum aliqua mala dicuntur de boâis Itaque jam vulgo Blasphemia non accipitur nisi mala verba de Deo dicere De hominibus namque dubitari potest Deus vero sine controversia bonus est D. August in lib. de Morib Manichaeor cap. 11. It is but a weak illustration of the matter to say Quod in homines est Contumelia hoc in Deum est Blasphemia It may formally be defined to be an Injurious and Contumelious Speech against God It is diametrically opposed to Divine Praise and both these may be as well Internal of the Heart as External of the Mouth for in Gods Omnisciency there is the language of the Heart as well as of the Lip and there may be Blasphemy in the one as well as of the other By the Levitical Law the Blasphemer was to be stoned to death By the Civil Law he was likewise to die for it Authen ut non Luxurientur in fin But this Penalty in those daies by reason of a defect of Religion and Justice is not inflicted says Lucas de Penna in L. omnes C. de Delatorib Jul. Clarus § Blasphemia nu 3. yet Blasphemers of the highest rank are at this day put to death in some places in others they are condemn'd to the Oars in some places they are Banish'd in others they have their Tongues cut off or a hole bored through with an hot Iron ut refert Clarus By the Canon Law solemn Penance was anciently enjoyn'd to Lay-Blasphemers c. 2. de Maled But this is not now in use The Council of Lateran under Pope Leo the Tenth Commanded that such Blasphemers should not be absolved in foro Conscientiae absque gravissima poenitentia dict Concil Sess 9. § Ad abolendum There are some who would have Heresie to be a kind of Blasphemy doubtless there are some Heresies that are very Blasphemous but Heresie in sui natura is quite another thing for as Blasphemy is de Deo male dicendo so Heresie is de Fide Catholica male eligendo for the word Haeresis is derived ãâã ãâã ãâã ãâã ãâã Eligo whence they are understood as Hereticks who departing from the true Catholick Faith of Christ aliam sectam Eligunt Some there are who would have all Hereticks to be divided into the Major and the Minor by the Major they will have to be understood all those qui nominatam haeresin praedicant such of old were the Manichaeans Arrians Eutychians Samaritans Ophites Donatists Priscillianists and the like By the Minor those qui haeresin innominatam defendunt Drosaeus in Method Jur. Thus the Philosophers of old had their Sects also among them unusquisque sibi aliquod genus disciplinae ac Sectae proprium elegit there were various Factions among them which by the Greeks were termed Heresies but by the Latins Sects Among the Ancient this word Heresie was not sensed in that odium as now with us nor the word Secta among the Latins St. Paul himself speaks of it in one place as in a sense almost indifferent Act. 26. 5. Notwithstanding it is well known that the Holy Scripture generally understands and speaks of it in pessimam partem so in Tit. 3. 10. A man that is an Heretick after the first and second Admonition reject And in 1 Cor. 11. 19. There must be Heresies among you that they which are approved may be made manifest And in Gal. 5. 20. Heresies are numbred among the works of the Flesh And in 2 Pet. 2. 1. they are called Damnable Heresies By the Civil Law an Heretick can neither make a Testament nor receive any benefit by a Testament L. fin C. de Haereticis And if you will believe Tho. Aquinas as in this you very safely may all Hereticks by robbing the Holy Scriptures of the Truth to establish their pernicious Lies are guilty of a kind of Sacriledge and by Fathering such Lies on God tacitly of Blasphemy Aquin. ar 2. In the One and fortieth Chapter of the ensuing Treatise you have a brief Catalogue of the Councils according to our computation here you have them more succinctly according to the Roman Account Sebastus a Judge in Thessolonica in the time of Constantinus Harmenopulus says That some of the Ecclesiastical Canons were of the Holy Apostles others of the Seven Oecumenical Councils others of particular Synods and others of certain Fathers of the Church to say nothing of the Papal Decretals ordered to be compiled by Pope Gregory the 9th The First Oecumenical Council was Conven'd at Nice under Constantine the Great against Arius who held the Son of God to be a meer Creature This Council consisted of 318 Bishops by whom Arius was Anathematiz'd and his Heresie condemned The Second was at Constantinople under Theodosius the Great against the Pneumatomachists who denied the Divinity of the Holy Ghost This Council consisted of 150 Bishops by whom these Hereticks together with their damnable heresie was accursed The Third was at Ephesus under Theodosius the Less against Nestorius and Celestinus who held that Christ was only Man At this Council were 200 Bishops by whom these Hereticks were likewise censured as the former The Fourth was at Chalcedon under Marcianus against Dioscorus and Eutyches who held that the Two natures of the Word viz. of God and Man were after the Union reduced into one Nature for which they were Anathematiz'd by 630 Bishops there Convened The Fifth was at Constantinople under Justinianus the First where 160 Bishops were present who confirmed the Decrees of the Fourth Synod and condemned Origen and all other Hereticks The Sixth was also at Constantinople under Constantinus Barbatus where were Assembled 170 Bishops who pronounced the Sentence of Anathema against all those qui unum in Christo voluntatem unam agendi vim
Nominatione non facta intra Sex menses devolvitur Nominatio plena Dispositio Episcopatus ad Papam As also appears in that remarkable Case controverted touching the Confirmation of the Election Ad Episcopatum Appamiarum For upon the death of Cardinal de Albret An. 1520. 10. Dec. that Bishoprick became void whereupon the Canons of that Church convened and proceeded to the Election of a new Bishop and chose D. Bernard de Lordat who being elected applied himself Archiepiscopo Tholosano tanquam suo Metropolitano saltem Vicariis suis for the Confirmation of his Election which was done accordingly to which Confirmation the Procurator Regius was not called who appealed from the said Election and Confirmation alledging that the Nomination to the Bishoprick belonged to the King who Nominated D. John de Puis to the Pope whereupon the Pope granted the said Bishoprick to the said John de Puis who by the Bulls and Proxies of the Pope took possession thereof From all which Appeal was again afterwards in Supremam Curiam between De ãâã and Lordat but De Puis obtaining another Bishoprick the Process on the Appeal was Extinct and Lordat by a Definitive had the Possession of the said Bishoprick Confirmed to him CHAP. VI. Of Consecration 1. What Consecration signifies the Ancient Rites and Ceremonies thereof under the Law who they were to whom it belonged 2. Consecration as specially Applicable to Bishops 3. An Ancient Canon touching the Consecration of Churches 4. The Form of Consecration of Churches by the Justinian Law the Rites and Ceremonies therein used by the Greek and Latin Churches 5. Consecration of Bishops how necessary by the Imperial Law Consonant to the practice of the Greek and Latin Churches 6. Consecration of Bishops is Character Indelebilis at the Common Law 7. Who first Consecrated Churches who first took the style of Pope The Original of Godfathers and Godmothers in Baptism 8. In case of Translations of Bishops no need of new Consecrations Requisites to Creation and Translation of Bishops according to the Common Law of England 1. CONSECRATION here chiefly refers either to Bishops or Churches The Civil as well as Canon Law takes notice of both It signifies a Dedication to God Justinian in his Novel's makes use of the word thereby signifying an Imposition of hands For in this manner says that Book of great Antiquity entituled ãâã ãâã ãâã ãâã ãâã began Bishops to be Consecrated It is a kind of Separation of persons Ecâcsiastical from the Laity and of things Sacred from Prophane for the especial use and service of God The word in the Hebrew signifies a Filling of the hand thereby intimating that under the Law in the Consecration of any there was a giving them or Putting into their hands things to offer whereby they were admitted to their Priestly Office In this Consecration the holy Unction was used or the holy Oyl or holy Ointment which was not to be applied to any Prophane or Civil use but to be appropiated to the Sons of Aaron only whereas Kings were and are to be Anointed that is to be understood as by especial command from God as an Exception to the Sacerdotal practice and as a Consecrating them to the Government in relation whereto a King is a Mixt person under a double capacity Ecclesiastical and Civil as next under God the Supream in Church and State within his own Dominions And although under the Levitical Law there was an Anointing Oyl common to the High Priest with the Inferiour Priests yet the High Priest had a Consecration peculiar to himself which was by the pouring out the precious Oyntment upon his head In imitation whereof are Kings at this day anointed to the Regal Authority 2. The import of this word Consecration as practicable in all Ages specially refers to Archbishops and Bishops and with us consists in certain Benedictions and Ceremonies peculiarly requisite thereunto And when after Election and Confirmation the person is Consecrated and Invested he is then compleat Bishop as well to Temporalties as Spiritualties and then the power of the Guardian of the Spiritualties doth cease Being Consecrated he may confer Holy Orders upon others and may Consecrate Churches and Chappels which before he could not Anselm Archbishop of Canterbury deprived divers Prelates for receiving Investure of King H. 1. but after they were restored ex gratia Speed 436. The Roman Synod made a Cannon that Investure belongs to the Pope yet H. 1. used to give Investure as he did to Ralph Archbishop of Canterbury Sp. 440. b. 3. Touching the Consecration of Churches the Learned Sir H. Spelman makes mention of a very Ancient Canon made by the Synod held at Celichyth in the year 816. under Wulfred Archbishop of Canterbury and President of the said Synod Kenulph King of Morcia being threat also personally present The Canon is to this purpose viz. Wherever a Church is built or erected let it be Sanctified by the Bishop of the proper Diocess Let it have a Benediction from himself and be sprinkled with Holy Water and so be made a compleat Church in such manner as is prescribed in the Ministerial Book Afterwards let the Eucharist which is Consecrated by the same Bishop be together with other Reliques reposited and laid up in a Chest and kept and preserved in the same Church And we Ordain and Command that every Bishop take care that the Saints to whom their Churches are dedicated respectively be painted on the Church-walls or in Tables or on the Altars 4. The Emperour Justinian in his care of the Church hath prescirbed a Form of Consecration thereof in this manner viz. his Law is That none shall presume to erect a Church until the Bishop of the Diocess hath been first acquainted therewith and shall come the lift up his hands to Heaven and Consecrate the place to God by Prayer and erect the Symbole of our Salvation viz. the venerable and truly precioas Rood Likewise among other Ceremonies of Consecrating Churches the laying of the first Stone was of Ancient use in the Greek Church as may be observed out of their Euchologue where it is said That the Bishop after some other Rites performed standing in the place where the Holy Altar shall be set saith certain Prayers which being ended he giveth tho Ite Missa est and then taketh up one of the Stones and having cut a Cross upon it himself with his own hands layeth it upon the Groundwork as the first Foundation-stone then be pronounceth the ãâã ãâã ãâã ãâã ãâã c. and so the Workmen begin the Building The like Ceremonies are used in the Latin Church at this day at the Consecration of Churches as appears by their Pontificale There is this further touching the Consecration of Churches in the Euchologue of the Greek Church That the Bishop having on his Formilities fumeth the Ground-work or Foundation with his Iacense Circular-wise then the Singing-men say
within the Town or Parish and he and all those whose Estate he hath in the Mansion-house of the Mannor or other House hath had a Seat in an Isle of the Church for him and his Family only and have repaired it at his own proper charges it shall be intended that some of his Ancestors or of the parties whose Estate he hath did build and erect that Isle for him and his Family only and therefore if the Ordinary endeavour to remove him or place any other there a Prohibition as was resolved in Corven's Case will lie It hath also been further Resolved That if any man hath a House in a Town or Parish and that he and those whose Estate he hath in the House hath had time out of mind a certain Pew or Seat in the Church maintained by him and them the Ordinary may not remove him for Prescription according to Sir Ed. Coke maketh Certainty the Mother of Quietness otherwise a Prohibition will also lie in the case But where there is no Prescription there the Ordinary for avoiding of contention in the Church may place the Parishioners in the Church or publick Chappel according to their qualities and degrees And until the Bishop hath consecrated or dedicated Churches or publick Chappels new erected the Law doth not take knowledge of them qua tales for which reason it is That a Church or not a Church a Chappel or not a Chappel is Tried and Certified by the Bishop 10. Touching the Reparation of Churches the cognizance thereof appertains to the Ecclesiastical Court as was Agreed by the Court in Buck's Case against Amcotts where in a Prohibition the Defendant said That in Hornechurch in Essex are Chappels of Ease viz. Rumford and Haveringe Chappels and that they of Haveringe have used time out of mind c. to contribute to the Reparation of Rumford and that in the time of H. 4. virtute Literar patent concurrentibus iis c. And Rumford was pulled down and erected in a more convenient place within this precinct and circuit viz. twenty eight foot longer and fourteen foot broader Noy That it does not lie 1 Virtute Literà r patent in general is not good But the Patent ought to have been shewn in haec verba or produc'd in Court by which the Court might judge For a new Church cannot be erected without Letters Patents because it is a Sanctuary Ve. 5 E. 3. 26. 1 H. 7. 25. 22 E. 4. the Lord Lisle's Case 2. The Prescription is gone by the erecting in another place and longer c. as aforesaid ve 4. Rep. P. 6. And that shall be taken strict Perkins 761. 7 E. 4. 27. 10 E. 3. 23. But the Court was on the contrary because it is pro bono Publico and in such a case a Pleader by Concurrentibus iis is good As in an Union 11 H. 7. 8. And that the Cognizance for Reparation of the Church appertains to the Spiritual Court and is not like the Case of a Tenure 4 Rep. 86. because the Tenant by that is put to a greater charge and no profit or benefit accrues to the Tenant as it does to the Parishioner And Easter Term ensuing a Consultation was granted by the Court He that hath the Impropriation of a Rectory or Parsonage ought to repair the Chancel and so he ought to contribute to the reparation of the Church if he hath any Land in that Village Mich. 18 Jac. B. R. Serjeant Davies Case Roll. Rep. par 2. 11. The Church-wardens of Denford an Ancient Church in the County of Northampton sue the Inhabitants of Kingstead in the same Parish where there was a Chappel of Ease for contribution to repair the Church of Denford And they pray a Prohibition upon suggestion That time out of mind c. they have used to Repair their own Chappel and only a part of the Wall of the Church-yard of the said Church of Denford And it seemed by the better opinion of the Court that it was not good For their Ease shall not be a disease to the rest of the Parishioners For Popham said That the Assent is not requisite to build a Chappel of Ease and then the Ordinary and the Parson cannot charge the Parishioners with greater charge By Yelverton That the Parson ought to repair the Wall of the Church-yard But by Fenner The Parishioners in the Spiritual Court shall be compelled to do it although that the Frank-tenement be in the Parson Yelvert objected and by Kemp secondary That the Parishoners of repair the Wall of the Church-yard Yet now it was ordered that a Prohibition shall be granted and the Dâfendants if they please may demurr upon it Note also B. 5 Jac. B. R. a Derbyshire-Case where a Prohibition in such case was denied 12. Two Church-wardens sue S. for Reparation of the Church according to the Tax assest S. pleads he alwaies offered to pay By which the Sentence in the Ecclesiastical Court passed against them Then they Appeal and Sentence is repealed and 15 l. Costs given to them and they sue for that 15 l. in the Ecclesiastical Court S. pleads a Release of one of the Church-wardens And in a Prohibition it seem'd to the three Justices That that Release is a Bar against the other and that if it be disollowed in the Spiritual Court by the Court it was said a Prohibition shall lie 7 Jac. B. R. rot 852. A Consultation in such case was granted for the Church-wardens in such a case are a Corporation for the benefit but not for the prejudice of the Parish 13 H. 7. 9. 11 H. 4. 12. And they shall recover the Costs to the use of the Church and the Release shall be well enough determined there where the Suit was commenced 13. In Heal's Case against the Church-wardens of Hobleton it was agreed by the Court That for a Tax assest for the Reparation of a Church a Rate made perpetuis duratura temporibus it is not good to bind the Inheritance but yet it is good by way of direction how and how much shall be levied as need requires And in Chamber 's Case a Prohibition was awarded to the Court of the Bishop of Oxford for that that Chambers was sued there for a perpetual charge imposed upon his Land for the Reparation of the Church For by the Court an Inherritance cannot be charged with that In another Case one that was sued in the Ecclesiastical Court for Rates to reparation of the Church alledged that they had overvalued his Land Rating them at the value of 100 l. per. annum they being worth but 60 l. 2 He alledged a Custome in the Parish that they ought to be rated not according to the value of their Farms and Houses but only according to the value of their Sheep-walks and on that matter he pray'd a Prohibition As to the first all the Court except Whitlock Resolved that it is not material because the Rates ought
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 Glâbe 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
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
if not of the highest Antiquity Some will have it in Ancient times to have been the Temple of Diana but the Ingenious Commentator on Antoninus's Itinerary though he will admit that Diana was indeed worshipped here in the Roman times and had Temples here also yet he will not agree it other than a Tradition to assert That St. Pauls Church was formerly a Temple of Diana and is free to conjecture that Mr. Selden did but sport his Wit and was not in good earnest when he imagined that London might be called first Lhan Dien that is the Temple of Diana The same may be said concerning the Temple of Apollo on the Ruines of which the report is St. Peters in Westminster was founded The Antiquary will also have it That at York was Bellona's Temple and Minerva's Temple at Bath and that from her the Town was called Caer Palladour that is the City of Palladian waters They that will have the Church of Rome to be Caput Ecclesiarum do ascribe it to Pope Boniface that he obtain'd it of the Emperour Focas because the Church of Constantinople writ her self Primam omnium Ecclesiarum This was so Decreed in the year 608. by a Council of 62 Bishops sub Anathemata At a Synod held at Westminster under Pope Innocent 2. in the Third year of King Stephen An. D. 1138. it was Decreed That no Church should be built without Leave first obtained from the Bishop of the Diocess Apostolica authoritate prohibemus ne quis absque Licentia Episcopi sui Ecclesiam vel Oratorium constituat By the Fifth Law of Ina King of the West Saxons the Church is made a Sanctuary Si quis sit mortis Reus ad Ecclesiam fugiat vitam habeat emendet sicut rectum consulet At a Synod held at Westminster in the Reign of H. 2. An. 1175. it was ordained then no Judgments touching Blood or Corporal punishment should be given in a Church or Churchyard by the Sixth Canon made at that Synod Seculares Causas in quibus de sanguinis effusione vel de poena Corporali agitur in Ecclesiis vel in Coemiteriis agitari sub interminatione anathematis prohibemus By the Fifth Canon made at a Synod held in London during the Reign of Edmond Father of Edwin and Edgar who succeeded Aethelstan at which Synod were present Odo and Wulstan Archbishops provision was for the Repairing of Churches viz. Vt omnis Episcopus reficiat Dei domos in suo proprio Regem ammoneat ut omnes Ecclesiae Dei sint bene paratae The like you have in the 92 Law of King Kanute Ad refectionem Ecclesiae debet omnis populus secundum Legem subvenire At a General Council held at Rhemes under Pope Calixtus An. 1119. during the Reign of H. 1. it was Ordained That whoever invaded the possessions of the Church should be Anathematiz'd Vniversas Ecclesiarum possessiones quae Liberalitate Regum vel Largitione Principum concessae sunt inconcussas in perpetuum inviolatas esse decernimus Quod si quis eas abstulerit aut invaserit Anathemate perpetuo feriatur And by the Sixth Law of Ina aforesaid if any man fought in the Church he should forfeit Six pounds si quis in Ecclesia pugnet 120 solid emendet And although it be now looked upon as Exaction for a Parson to demand his Funeral dues of Burial where the deceased is carried out of his Parish to be buried in another so it was long since Ordained by the Laws of King Kanute leg 16. Si Corpus aliquod à sua Parochia deferatur in aliam pecunia tamen Sepulturae ejus jure in eam Ecclesiam pertinebit Among other Officers relating to the Church those of Churchwardens Questmen and Sidemen are not to be omitted for although they may be some of the Lower Form yet they are of necessary use and such as without whose care many disorders in the Church may pass unpunished as well as the Concerns thereof much prejudiced for which end and reason the Law will have them to be a Corporation qualifies them to Sue subjects them to Suits and understands them in the nature of Ecclesiastical Trustees as Guardians of the Moveable Possessions of the Church Therefore the Canons have determined as to the qualification of the persons Eligible the manner of their Choice by whom and the time when their Oath Office Duration and Account when and before whom it shall be made and how they shall be finally discharged By reason of the great desolation and ruine of many Churches and Parishes in the late Unnatural War in this Kingdom and otherwise it hath been judged necessary to pass an Act of Parliament for the Uniting of certain Churches in Cities and Towns Corporate Notwithstanding which the Parishes to remain distinct as to all Rates Taxes Parochial Rights Charges and Duties and all other Priviledges Liberties and Respects whatsoever wherein it is also Enacted That the Patrons of such Churches and Chappels so united shall Present by Turns only to that Church which shall remain and be Presentative from time to time c. Provided That Parishes having 100 l. maintenance per An. may not be Vnited Also the Incumbents of such united Parishes must be Graduates in some Vniversity And the Owners of Impropriations may bestow and annex Maintenance to the Churches where they lie and settle it in Trust for the benefit of the said Parsonage or Vicarage without any License of Mortmain It is there also further Enacted That if the settled Maintenance of such Parsonage Vicarage Churches and Chappels so united c. shall not amount to the full sum of 100 l. per An. clear and above all charges and reprizes that then it shall be lawful for the Parson Vicar and Incumbent of the same and his Successors to take receive and purchase to him and his Successors Lands Tenements Rents Tithes and other Hereditaments without any License of Mortmain any Law or Statute to the contrary notwithstanding The Churches and Parishes in London which by that Act since the Dreadful Fire are United are these viz. The Parishes of Alhallowes Breadstreet and St. John Evangelist are united into one Parish and the Church of the former to be the Parish-Church of the Parishes so united The Parishes of St. Albans Woodstreet and St. Olaves Silverstreet are united into one Parish and the Church of the former to be the Parish Church of the said Parishes so united The Parishes of St. Austins and St. Faiths are united into one Parish and the Church of the former to be the Parish Church of the said Parishes so united The like order to be observed in all the rest of the Parish Churches that are by that Act united Touching Dilapidations of Ecclesiastical Edifices and Possessions it may well be presumed That the most of that kind that ever was in the Christian World was in the time of Dioclesian's
Persecution which moved Constantine Son of Constantius Chlorus who began his Reign in the year of our Lord 310. to give command for the Re-edifying and Repairing the Temples of the Christians which was not only expeditely put in Execution but many new Churches were also erected for the Convention of the Christians and Idol-Temples shut up until Julian the Apostate restored the Heathenish Idolatry It hath ever belonged to the care and cognizance of the Church to make provision for the Repair of the Dilapidations of the Church Thus Jehoida made it his business to repair the Dilapidations of the Temple But although Controversies hence arising and incident to this matter are properly belonging to Ecclesiastical cognizance yet they are not only Ecclesiastical persons that are hereunto obliged for although they alone are to prevent and repair or make satisfaction for what part of the Churches Dowry themselves have suffered to be Dilapidated whilst in their own possession yet as to the Church it self and the Incidents thereof others as well as Ecclesiasticks are obliged to the Repairs thereof for the Steeple with the Body of the Church and all Chappels lying in Common thereunto are to be Repaired by the Joynt cost of the Parishioners And such Private Chappels as wherein particular persons claim a propriety of Seat and Sepulture are to be Repaired at their own charge but the Chancel is to be kept in Repair at the Parsons cost yet in all these respect is chiefly to be had to the Custome of the Place time out of mind for that shall rule the Premisses and will go far to determine whether the Fences of the Church-yard are to be made and repaired at the charge of the Parson who may have the ground thereof as part of his Glebe or at the charge of the Parishioners or of such persons whose Land surrounds or abutts on the same Suarez saies That for the better prevention of Dilapidations there was Anciently a Custome in some places That some part of the Tithes should not be paid to the Clerk or applied to the party Beneficed but should be reserved for the use of the Fabrick of the Church to repair the same and for the use of the Poor and were not properly due to any particular Clerk ut in ejus dominium transferantur but to the Church not the material Temple but to the Church that is the Clergy for the use of the Temple The Executors or Administrators of a Dilapidator stand charged in the Ecclesiastical Court to the succeeding Incumbent to make good the Repairs and if such Dilapidator in his life-time shall make a Deed of Gift to defeat the Successor of the effect of his Suit it is void 13 Eliz. cap. 10. And the Successor Incumbent shall have like remedy in the Ecclesiastical Court against such Donee or Grantee as he might have had against the Dilapidators Executor or Administrator Also by 14 Eliz. cap. 11. it is provided That all the Moneys received for Dilapidations shall within Two years be employed upon the Buildings for which they were paid on pain of forfeit of so much to the King as shall not be so employed When a Church becomes Litigious and doubt arises touching the right of Patronage or Presentation in that case the Law hath provided an Expedient for the Ordinary whereby his being a Disturber in case he Collate or Present is prevented to which end and in such case the Law directs him to award the Jure Patronatus wherein the Practice with us at this day answers to the pretence of all persons quorum interest with more exactness and general satisfaction than was anciently practicable according to the Canons and Constitutions of old as appears by the defect in this matter of the Seventeenth Canon of the Council at Rome An. 1180. which is only to this effect viz. If a question arise concerning Presentations of divers persons to one Church or concerning the Gift of Patronage if the foresaid Question be not decided within the space of Three months the Bishop shall place in the Church the person whom himself conceives most worthy The Law takes notice of a twofold Jus Patronatus the one Civile the other Canonicum The former is that which is introduced by the Civil Law and refers to a Lord or Patron in respect of his Bondman made Free and his Goods the other and which only is here intended is That which is instituted by the Church in shew of gratitude to him who either Founded built or Endowed some Church for which reason the Bishops granted them a certain Right in such Churches which is commonly called Jus Patronatus and that by the Canon Law understood as Honorificum Vtile Onerosum Honorificum in regard of that obsequious Respect due from the Parish to the Patron specially in that the chiefest Seat in his Church is granted to him Onerosum in that the Patron may lawfully defend his Church and prevent the Dilapidations both of the Church and of what she is Endowed with according to the way and manner prescribed in cap. Filiis 16. q. 7. It is also called Jus Vtile because that if any time the Patron or any descending from him shall happen to fall into decay in such case the said Church is more oblig'd to supply the necessities of him and his than of any other Poor c. Quaecunque cum sequent For this reason also it is and that others may be encouraged to the like Acts of Piety the Church as a Mark of special grace and favour hath granted to such Patrons the Jus Praesentandi or a Right to Present fit persons to the Benefice of such Churches This Right or Jus Patronatus did not belong to Patrons anciently or jure antiquo as appears by the Gloss in cap. Piae mentis yet most certain it is That this Right of Patronage was Jus antiquissimum as is evident by cap. Quoniam de jure Patronat And the Lateran Council calls it Potestatem in qua Ecclesia huc usque Patronos sustinuit The present Incumbents Parsons and Vicars of Churches burnt in London by the late Dreadful Fire and by Act of Parliament not to be rebuilt are by the said Act not deprived of the Tithes or other profits formerly belonging to their respective Churches so long as they shall assist in serving the Cure and other Offices belonging to their duty in the Parish-Church whereunto their respective Parishes shall be united and annexed by the said Act according to the direction of the Ordinary c. Saving to the Kings Majesty his Heirs and Successors the Tenths and First-Fruits of all such parish-Parish-Churches as by force of the said Act are united and consolidated c. yet so as that the said Parsons and Vicars are by the said Act indemnified from the payment of all First-Fruits Tenths and Pensions due and which shall be due unto his Majesty and from all dues to the Ordinary and Archdeacon and all other dues
of King Kanute made for the indemnity of such as should have recourse to Tribunals for their safe coming and going to and from Courts of Justice Et volo ut omnis homo pacem habeat eundo ad gemotum vel rediens de gemoto id est placito nifi fit fur probatus It is a word from the Saxon ãâã ãâã ãâã ãâã ãâã convenire unde Nostratium to meet But this digression the Reader must put on the Abbots score in regard the word Abbates gave the occasion thereof which may be but a Venial offence in regard that that Ecclesiastical Dignity is with us laid aside though their Possessions had better Fortune yet when King H. 8. did dissolve them he did not only augment the number of Colledges out of the Revenues thereof but also erected divers new Bishopricks as at Westminster Oxford Peterborough Bristol Chester and Glocester all remaining at this day save that at Westminster which being restored to its pristine Institution by Queen Mary and Benedictines placed therein was after by Queen Elizabeth converted to a Collegiate Church In this Chapter there is mention also made of Chauntries Cantaria or if you please Aedes Sacra ideo Instituta Dotata Praediis ut missa ibidem Cantaretur pro anima Fundatoris propinquorum ejus Ita Spelm. Of these and Free Chappels about 2374. were dissolved by King H. 8. to whom they were given by Parliament in the 38th year of his Reign The Religious Houses under 200 l. per An. were granted to him in An. 1535. All greater Monasteries in An. 1538. The Chantery and Free Chappels in An. 1545. Of these Chanteries Forty seven belonged unto St. Pauls London And as for Annates or First-Fruits it is Historically reported to us that they were first introduced into England in the time of King Edward the First by Pope Clement who succeeded Benedict For this Pope Clement after the death of Pope Benedict was no sooner Elected and Enthron'd in France but he began to exercise his new Rapines here in England by a compliance with the said King Edward in granting him a Two years Disme from his Clergy for his own use though pretended for the aid of the Holy Laud that with the more ease himself might exact the First Frutts of vacant Ecclesiastical Benefices to augment his own Revenues though not within his own Territories This is said to be the first President of any Popes reserving or exacting Annates or First-Fruits of all Ecclesiastical Dignities and Benefices throughout England extant in our Histories which though reserved but for Two years by the Pope at first yet afterwards grew into a Custome by degrees both in England and elsewhere And thus they remained in the Pope until an Act of Parliament entituled the Crown thereunto in the time of King Henry the Eighth which afterwards were restored again to the Pope by Queen Mary but in the first year of Queen Elizabeth an Act pass'd for restoring the Tenths and First-Fruits to the Crown Notwithstanding what some Historians have as aforesaid reported touching the first introduction of First-Fruits into England by Pope Clement in the time of King Edward the First it is most evident that they were to be yielded and paid here in England some hundreds of years before that time as appears by the Laws of Ina King of the West Saxons who began his Reign in the year 712. The Law was this viz. Primitias seminum quisque ex eo dato domicilio in quo ipso Natali die Domini commoratur Lambert de Leg. Inae Reg. And by the Laws of King Edgar who began his Reign in the year 959. it is Ordained in these words Ex omni quidem ingeniorum terra ipsae Seminum Primitiae primariae penduntor Ecclesiae Idem de Leg. Edgari Reg. Ipsas autem Seminum Primitias sub Festum Divi Martini reddito Ibid. The like you have in the Laws of King Kanute who began his Reign in the year 1016. Seminum Primitiae ad Festum Divi Martini penduntor si quis dare distulerit eas Episcopo undecies praestato ac Regi Ducenos viginti Solidos persolvito Idem Lamb. It is supposed that Boniface Archbishop of Canterbury in the Reign of Ed. 3. was the first that made way for Popes to Appropriate Annates and First-Fruits in this Kingdom to themselves for the said Archbishop An. 1246. upon a feigned pretence that his Church of Canterbury was involved in very great Debts by his Predecessor but in truth by himself to carry on Forein Wars and gratifie the Pope procured from Pope Innocent a grant of the First years Fruits of all Benefices that should fall void within his Diocess for the space of Seven years till he should thence raise the Sum of Ten thousand Marks yearly out of the Bishoprick So that this Grant of First Fruits of Benefices to Boniface the said Archbishop made way for Popes Appropriating First-Fruits and Annates to themselves soon after But in process of time the Parliament having as aforesaid settled them on King H. 8. there was an Office thereof established in London An. 1538. whereby the Kings Revenue increased exceedingly from this Office for the receipt of Tenths and First-Fruits which was then first erected in London such Moneys being formerly paid to the Pope for that the Tenths and First-Fruits of the English Clergy were yearly return'd to Rome But now the Pope being dead in England the King was found his Heir at Common Law as to most of the Power and Profit he had usurped and the Rents which the Clergy paid were now changed together with their Landlord for Commissioners whereof the Bishop of the Diocess was ever one were appointed to estimate their Annual Revenues that so their Tenths and First-Fruits might be proportioned accordingly At this time the Oblations from the Living and Obits from the Dead were as duly paid as Predial Tithes and much advanced the Income but Queen Mary did after by Act of Parliament exonerate the Clergy from all these First-Fruits and ordered the payment of the Tenths to Cardinal Poole for discharge of Pensions allowed to certain Monks and Nuns but Queen Elizabeth in the first year of her Reign resumed these First-Fruits and Tenths only Personages not exceeding ten Marks and Vicarages ten Pounds were freed from First-Fruits vid. Stat. 1 Eliz. cap. 4. That which in the method of the ensuing Treatise next offers it self to consideration is Altarage Altaragium taking its denomination from the Altar because to speak properly Altargium est Emolumentum Sacerdoti provenieus ratione Altaris ex Oblationibus sc vid. Jo. de Athon in Constit. Legatim Otho c. Auditu ver Proventus Touching this Altarage there is an Ancient Record in the time of King H. 3. about the year 1234. in the Chronicle of William Thorne the Augustine Monk of Canterbury whereof among other things there is mention made in a certain Composition between Edmond Archbishop
that known Rule in Law Actio personalis moritur cum persona the Reason being because the Obligation arising thence is meerly Personal non est ad aliquid dandum sed ad aliquid agendum yet Navar. Adriaâ and others who hold the contrary will not be so answered for though they agree the Rule of Law yet they deny the foresaid reason of that Rule to hold in this case for say they the obligation in this case is not purely and meerly Personal as is commonly supposed but doth quodammodo affect the Estate of the Defamer whether alive or dead He gives an Instance A man sets his Neighbours House on fire and dies his Heirs shall make good the dammage done by that fire A mans Good Name and Reputation is far more precious than his habitation he that consumes that Good Name and Credit without cause shall refund the dammage out of his Estate and death it self before satisfaction made shall not excuse his Heirs vid. Navarr c. 18. nu 45. Adrian quodlibet 11. So likewise as to the other Question Vtrum defuncto sit Fama restituenda there are who hold it in the Affirmative Quia Fama est bonum quod homo etiam post mortem censetur possidere But when all is said for some will superabound in their own Judgments the said Rule of Law must stand void of all Exceptions and hold good and applicable to the Premises That Actio Personalis moritur cum persona Among all those horrid Offences whereby the Church is or can be violated that of Sacriledge seems to look with the blackest face which though as a Felonious act may fall under a Temporal cognizance yet the Canon Law concludes it as a thing in its own nature properly subjected to the determination of the Ecclesiastical Jurisdiction It is now nigh a Thousand years since Withred King of Kent conven'd a Synod wherein Brithwaâd Archbishop and Primate of all Britain was President In which Synod it was so long since declared in these words viz. Horrendum est hominibus Deum vivum expoliare tunicamque ejus haereditatem semdere By the Laws of Alured King of the West-Saxons Leg. 7. the Sacrilegious person was to lose that hand wherewith he did the Fact Si quis in Ecclesia furetur aliquid amputetur manus de qua furatus est In the time of Queen Elizabeth there were a Sacrilegious kind of Church-Plunderers who under pretence of abolishing Superstition demolished Ancient Tombs raz'd the Epitaphs and Coat-Armours of most Noble Families and other Monuments of venerable Antiquity took the Bells out of Churches and uncovered the Roofs of Churches by plucking off the Lead but these Birds of Prey had their wings soon clip'd by the said Queens Proclamation which was effectually put in execution for the restraint of such Sacrilegious Rapines King Guthred who by St. Cuthbert's Command was in Childhood taken out of a Servile estate and made King of Northumberland about the year 890 made such an Edict against the Sacrilegious persons as thunder'd them all into Hell Gravissimae maledictionis Anathemate percussit ut cum Juda Proditore Domini damnationis sententia feriantur Simeo Hist de Dunelm Eccl. Nor are Korah and his Confederates the only persons whom the Earth interr'd alive for their Rebellion against the Sacerdotal Function for if you will credit Tradition the like hath since happened in the case of Sacriledge to the Scotch Army which in the said Guthred's time had no sooner according to their Modern Practice fleec'd the Church of Lindisfarne nigh Tweed to tunick their Longshanks but the Earth greedily opened her mouth and devour'd these Devourers at that very instant when they were all ready to engage in a Battel with the said King of Northumberland dict Sim. ibid. But not to rake up Antiquity for discovery of what Legends and Romances lie under the Ashes thereof this is as well True as Chronicled That King William Rufus was Casu fortuito non voluntarie darted to death instead of a Stag by a certain Franck one Walter Tyrell in the same place which his Father the Conqueror had Sacrilegiously disecclesiated for more than 30 Miles to Forest it into Speluncas latronum lustra ferarum This was a real Sacriledge in a Victorious Monarch which added little to the Credit of his Conquests but that in Pope Boniface the Seventh if Historians do not bely him was a Personal Sacriledge who when he understood that the Roman Citizens conspired against him took with him all the Jewels of the Church of St. Peter and fled to Constantinople where he converted the same into money for the proper use of his Sacrilegious Holiness Another gross offence and little inferiour to the former within the Cognizance of the Church is Simony or that Art Magick whereby Parsons scarce worth the name of Persons as the Devil did into our Natural Mother insensibly so they Serpentine themselves into our Spiritual Mother the Church visible invisibly Hildebrand or by an alias Pope Gregory the Seventh Conven'd a Synod General against Church-purchasers and buyers of Ecclesiastical Livings and against such Bishops as from the hands of Kings or Emperours receive the investure of their Bishopricks per traditionem Annuli Baculi he said That Quisquis Episcopatum mercatur contra Spiritum Sanctum qui donum Dei dicitur facit He likewise made a Decree in the year 1074 That not only the Buyer and Seller of any Ecclesiastical Office but whoever also that is consenting thereunto shall be damned with Simon Magus Simeon Dunelm Hist de Gest Reg. Angl. It is unavoidable for the Pope who hath the Keys of Hell by his girdle hath so Decreed it But Pope Gelasius was in this matter better natur'd by far for he left some place for Repentance and proceeded not an inch beyond a Reversable Anathema Si quis vendiderit aut emerit vel per se vel per alium Episcopatum Abbatiam Deconatum Archidiaconatum Presbyteratum Praeposituram Praebendam Altaria vel quaelibet Ecclesiastica Beneficia Promotiones Ordinationes Consecrationes Dedicationes Ecclesiarum Clericalem tonsuram Sedes in choro aut quaelibet Ecclesiastica Officia vendens emens Dignitatis Officii sui ac Beneficii periculo subjaceat Qââd nisi resipuerit Anathematis mucrone perfossus ab Ecclesia Dei quam âaesit modis omnibus abscidatur The like was Ordain'd by a Council of 300 Bishops Conven'd at Rome Pope Calixius the Second being President viz. Ordinari quemquam per pecuniam in Ecclesia Dei vel promoveri auctoritate Sedis Apostolicae modis omnibus prohibemus Si quis vero in Ecclesia Ordinationem vel Promotionem taliter adquisierit acquisita careat prorsus dignitate dict Simeo ubi supra The same in terminis you have Ordain'd at a Synod Conven'd at Westminster An. 1126. in the Reign of King Henry the First Honorius the Second being then Pope viz. Sanctorum Patrum vestigiis
tradehant The Seventh was at Nice under Constantine and his Mother Irene where 367 Bishops were assembled against the Adversaries of Images whom they subjected to their Anathema 2 Of Particular Synods one was held in the Temple of the Apostles in Constantinople under the Patriarch Photius which was called the First and Second Another under Leo and Constantine in the most Famous Temple Sanctae Dei Sapientiae or Sanctae Sophiae which confirmed the Seventh Synod Another at Ancyra more ancient than the first Universal Synod Another at Caesarea more ancient than that at Ancyra Another at Gangra after the Nicene against Eustachius who despised Marriage and taught things not consonant to Ecclesiastical Tradition Another at Antioch a City in Syria where in truth were two Synods the one under Aurelianus against Paulus Samosatenus who said that Christ was meer Man the other under Constantius Son to Constantine the Great Another at Laodicea scituate in Phrygia Pacatiana Another at Sardica that when Constantius embraced the foresaid Sect his Brother Constans Emperour of Old Rome by his Letters threatning him with a War if he would not desist from perverting the Church his Answer was That he sought no other Doctrine than what was most agreeable to the Catholick Faith whereupon by their and the Bishop of Romes appointment 341 Bishops were Conven'd in a Synod which having established the power and authority of the Nicene Synod did constitute divers Canons for the Church Another at Carthage under Theodosius where 217 Bishops were assembled and with them the Popes Vicegerents this Carthage was part of Charchedon and that a Province of Africa 3 The Canons of the Fathers are taken according to the Roman computation out of the Epistles partly of Dionysius Alexandrinus partly of Petrus Alexandrinus partly of the Wonder-working Gregorius partly also out of the Epistles of Bazil or Basilius the Great partly out of the Epistle of Gregory or Gregorius Nyssenus to the B. of Melita partly out of the Responses of Timotheus Alexandrinus partly out of the Responses of the Constantinopolitan Synod to certain Monks Nicholaus the Patriarch being President partly out of the Epistles of Cyril or Cyrillus and partly out of the Epistles of Nicephorus the Patriach 4 The Canons of the Holy Apostles a book falsly ascribed to the Apostles are in number Eighty Five according to a modest Computation if you have any Faith to spare at least enough to believe the Church of Rome in that as in other Points infallible But the Canons indeed of the Apostles which are of Order and External Government do oblige as Dr. Taylor says the Conscience by being accepted in several Churches not by their first Institution and were fitted only to Times and Places and present Necessities For says he the Apostolical Decree of Abstaining from Blood was observed by more Churches than those of Syria and Cilicia to which the Canon was directed and the Colledge of Widows or Deaconesses derived it self into the manners of the Western Churches And the Apostles in their first Preaching and Conversation in Jerusalem instituted a coenobitick life and had all things in Common with Believers indeed no man was obliged to it Of the same nature were their Canons Counsels and Advices The Canon concerning Widows Let not a Widow be chosen under 60 years and yet Justinian suffered one of 40 years old to be chosen Novel 123. c. 12 13. And the Canon of the Apostles forbidding to eat things strangled is no where observed in the Western Churches of Christendom In the beginning of the Fourth Century above 1300 years since we find our Bishops British Bishops at the Councils of Arles Nice Sardis and Ariminum a clear Evidence of the flourishing state of Christianity so long since in this Island At Arles in France conven'd touching the Donatists appeared for the Britains Eborius Bishop of York Restitutus Bishop of London Adelfius Bishop of the City called the Colony of London which some suppose to be Colchester others Maldon in Essex Sacerdos a Priest both by Name and Office Arminius a Deacon An. 313. At the Synod of Nice in Bithynia An. 325. to suppress Arrianism were British Bishops present as Athanasius and Hilary Bishop of Poictiers affirm At the Council of Sardis in Thracia conven'd by Constanitus and Constans Sons to Constantine the Great the British Bishops were likewise present when the Arrians were condemn'd and Athanasius acquitted And at the Council of Ariminum in Italy the British Bishops were also present who according to Athanasius were about An. 360. summoned to divers Forein Councils in remote parts As also here at home in and after the Seventh Century were divers particular Councils and Synods the first whereof according to Stapleton out of Bede called The first of the English Nation was conven'd at Hertford by Theodorus Archbishop of Canterbury who succeeded Deusdedit in that See in this Council the Observation of Easter was settled according to the Romish Rite yet whosoever will have this Council to be as aforesaid The first of the English Nation must understand it the First whose Canons are compleatly extant Bede lib. 4. c. 5. About the year 740 Ethelbald King of Mercia with Cuthbert Archbishop of Canterbury called a Council at Cliffe in Kent the acts of which Synod were 31 Canons among which is was inter alia Ordain'd That Prayers should publickly be made for Kings and Princes But some few years before this the said Theodorus held a Synod or Council of Bishops at Hatfield by authority whereof he divided the Province of Mercia which Sexwolphus then governed alone into five Bishopricks viz. to Chester Worcester Lichfield Cedema in Lindsey and to Dorchester In the year 692 a great Council was held at Becanceld by Withred King of Kent and Bertuald Archbishop of Britain wherein many things were concluded in favour of the Church About the same time a Council was held at Berghamsteed by the said Withred King of Kent at which Council Bishop Wilfrid was restored to York whence he departed for Rome upon the endeavours which Theodorus Archbishop of Canterbury had used to have that Diocess of York divided In the year 801 Ethelard the Archbishop called a Synod at Clivesho in Kent where by power from the Pope he rivited that 's the word the Archbishoprick into the City of Canterbury There was likewise at Celichyth an eminent Council under Wolphred who succeeded Ethelard Archbishop of Canterbury But nigh one hundred years before this viz. about the year 709 a Synod was assembled at Alncester in Worcestershire to promote the building of Evesham-Abbey And not long after another Synod was called at London to introduce the Doctrine of Image-Worship into England now first beginning to appear in the publick practice thereof Also above one hundred years before that viz. about the year 601. Augustine by the aid of Ethelbert King of Kent called a Council of Saxon and British Bishops to meet in the Confines of the Mercians and
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 Lââfrank 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 ââher Canons Constitutions or Ordinances Provincial by
Excommunicate person should be present whilst he was at Mass having in his life-time been Excommunicated by the said Priest for refusing to pay his Tithes vid. Cron. dict Bromton de Regn. Cantiae Excommunication is of such a large extent that this World is too narrow to contain it therefore it extends it self to the next World also and that not only in reference to the Soul but also to the Body insomuch that the interr'd Bodies of persons dying under Excommunication have often been inhumanely exhumated and taken out of their Parochial graves to associate with the rotten Carkases of bruit Beasts a President whereof you have in King Edward the Thirds time when the Pope by his Bull to the Bishop of Lincoln commanded That the Bodies of all such Excommunicates as in their Life-time had adhered to the Lady Wake in the Contest between her and the Bishop of Ely touching a Mannor should be taken out of their Graves and cast out of the Church-yard This is much worse than to be denied the honour of a Christian burial which by the Council at Rome An. 1180. was the punishment of such Lay-persons as transferr'd the right of Tithes to other Laicks without delivering them to the Church yet by the Sixth Canon of that Council it is Ordain'd That no man shall be Excommunicated or suspended from his Office until he be legally and duly summoned to appear and answer for himself except in such cases as deserve summary Excommunication It was a strange Excommunication as to the new and insolent Form thereof wherewith Pope Theodorus Excommunicated Pyrrhus Patriarch of Constantinople who having been infected with the Heresie of the Monothelites and thereupon Excommunicated and upon his Recantation absolved relapsed into the same Error whereupon the said Theodorus Excommunicated him the second time but in such a way and manner as never had a former President or second Practice For he infused some drops of consecrated Cup into Ink and therewith writ a Sentence of Anathema against Pyrrhus Hist Mag. Cent. 7. cap. 39. Whether the Dead may be Excommunicated was the first Question moved in the Fifth General Council at Constantinople An. 551. under the Emperour Justinian To which Eutychius answered That as Josiah opened the Sepulchres of the Dead and burnt their Bones So the Memorials of such might be accursed after their death who had injured the Church in their life for which pertinent Answer the said Emperour made him Bishop of Constantinople so that he succeeded Menas who about the same time had departed this life suddenly sitting the Council That worthy Prelate who affirmed That it was certainly unlawful to Excommunicate any man for not paying the Fees of Courts is scarce so generally credited in his Law as he may deserve to be in his Doctrines especially when his Reason for that Assertion viz. That a Contumacy there speaking of Courts Ecclesiastical is an Offence against the Civil Power is duly weighed and considered and more especially when such Fees are not paid notwithstanding the Orders and Decrees of such Courts for the payment thereof Contempts of which kind might pass wholly unpunished if Ecclesiastical Censures should not take place in such cases Many are the Prejudices which ensue upon Excommunication some whereof in case of obstinate persistency reach us as Men as well as Christians and seem as it were to unman us as well as unchristian us extending per brachium Seculare as well to our Civil Liberty as per censuram Ecclesiasticam to our Christian having a dreadful influence both on Body and Soul and that in both worlds Rebussus enumerates no less than above Threescore of these penalties for so he calls them Poenae contra Excommunicatos Rebuff de Excom non vitand Such persons as are extra Communionem Ecclesiae or Excommunicates with us were apud Hebraeos anciently called Aposynagogi as cast out of the Synagogue and for their Contumacy Extorres to be shunn'd of all men until they repented Old Such as are Anathematiz'd and under the greater Excommunication are as it were expell'd out of all Humane Society and banish'd from Mankind understand it of those within the Church such an Anathema may be somewhat compared to that Punishment which the Romans of old called Interdictio ignis aquae borrowed from the Graecians which their great Legislator Draco enacted as a Law to the Athenians and which Punishment in truth was second to none save that which is Capital Towards the close of this Ecclesiastical Abridgment you have some mention made of the Statute of Circumspecte Agatis In the Thirteenth year of the Reign of King Edward the First An. 1285. the Bounds and Limits of both Jurisdictions Spiritual and Temporal were fix'd by Parliament by a Statute under that Title the English whereof translated from the Latin out of the Records runs thus viz. The King to his Judges sendeth Greeting Vse your selves circumspectly in all matters concerning the Bishop of Norwich and his Clergy not punishing them if they hold Plea in Court Christian of such things as be meerly Spiritual viz. of penance enjoyned for deadly Sin as Fornication Adultery and such like for the which many times corporal penance or pecuniary is enjoyned specially if a Freeman be convict of such things Also if Prelates do punish for leaving Church-yards unclosed or for that the Church is uncovered or not conveniently decked in which cases none other penance can be enjoyned but pecuniary Item If a Parson demand of his Parishioners Oblations and Tithes due and accustomed or if any person plead against another for Tithes more or less so that the Fourth part of the value of the Benefice be not demanded Item If a Parson demand Mortuaries in places where a Mortuary hath used to have been given Item If a Prelate of a Church or if a Patron demand a ` Pension due to themselves all such demands are to be made in a Spiritual Court And for laying violent hands on a Priest and in case of Defamation it hath been granted already that it shall be tried in a Spiritual Court when money is not demanded but a thing done for punishment of Sin and likewise for breaking an Oath In all cases afore rehearsed the Spiritual Judge shall have power to take knowledge notwithstanding the Kings Prohibition vid. Lindw Constit lib. 2. Tit. De Foro-Competenti Vid. Full. Chur. Hist. lib. 3. p. 79. Now whereas some doubt hath heretofore been whether this were indeed an Act of Parliament or any thing more than a Constitution made by the Prelates themselves or only a meer Writ issued out from the King to his Judges Sr. Ed. Coke Instit. par 2. pag. 487. resolves it in express terms thus viz. Though some have said that this was no Statute but made by the Prelates themselves yet that this is an Act of Parliament it is proved not only by our Books but also by an Act of Parliament By this Statute of Circumspecte Agatis the
manner viz. The Bishops See being vacant the Dean and Chapter of that Cathedral gives notice thereof to the King humbly requesting his Majesty's leave to chuse another the King grants his Congé d'Eslire Thereupon the Dean summons a Chapter they elect the person recommended by his Majesties Letters that Election after a first or second modest refusal being accepted by the party elected is certified to the King and to the Archbishop of that Province hereupon the King grants his Royal Assent under his Great Seal exhibited to the said Archbishop with Command to Confirm and Consecrate him upon this the Archbishop subscribes his Fiat Confirmatio withal giving Commission under his Archiepiscopal Seal to his Vicar-General to perform all the Acts requisite for perfecting his Confirmation Hereupon the Vicar-General in the Archbishops name issues a Citation summoning all Opposeâs of the said Election to make their appearance at a certain time and place then and there to offer their Objections if they have any This done by an Officer of the High-Court of Arches usually at Bow-Church London by Proclamation thrice and affixing the said Citation on that Church-door an Authentick Certificate thereof is by the said Officer returned to the said Archbishop and Vicar-General At the time and place aforesaid the Proctor for the said Dean and Chapter exhibits the Royal Assent and the Commission of the Archbishop to the Vicar-General who after the reading thereof accepts the same Then the Proctor exhibits the Proxy from the Dean and Chapter presents the elected Bishop returns the Citation and desires that the Opposers may be thrice publickly called which done and their Contumacy accused desires that in poenam Contumaciae the business in hand may proceed which the Vicar-General in a Schedule by him read and subscribed doth order Then the Proctor gives a Summary Petition therein deducing the whole Process of Election and Consent and desires a time may be assign'd him to prove it which the Vicar-General admits and decrees After this the Proctor exhibits the Royal Assent again with the elected Bishops Assent and the said Certificate to the Archbishop desiring a time to be presently assigned for Final Sentence which the Vicar-General decrees Then the Proctor desires that all Opposers may again be thrice publickly called which done and none appearing nor opposing they are pronounced Contumacious and a Decree made to proceed to Sentence by a Schedule read and subscribed by the Vicar-General Whereupon the Bishop elect takes the Oaths of Supremacy Simony and Canonical Obedience After this the Dean of the Arches reads and subscribes the Sentence Next after the Confirmation follows the Consecration of the elected Bishop according to the Kings Mandate which is solemnly done by the Archbishop with the assistance of two other Bishops according to the approved Rights and Ceremonies of the Church of England and in conformity to the manner and Form of Consecrating Bishops according to the Rule laid down in the Fourth Council of Carthage about the year 470 generally received in all the Provinces of the Western Church After the Premises there issues a Mandate from the Archbishop to the Archdeacon of his Province to install the Bishop Elected Confirmed and Consecrated who or his Proxy which is usual being in presence of a Publick Notary introduced into the Cathedral Church on any day between the hours of 9 and 11 by the said Archdeacon doth first declare his assent to the Kings Supremacy c. Then the Archdeacon with the Canons c. having accompanied the Bishop to the Quire and placed him in the Episcopal Seat doth pronounce as followeth viz. Ego authoritate mihi Commissa Induco Inthroâizo Reverendum in Christo Patrem Dominum J. S. Episcopum Et Dominus custodiat suum introitum exitum ex hoc nunc in saeculum c. Then after the Divine Service proper for the occasion the Bishop being conducted into the Chapter-house and there placed on a high Seat the Archdeacon and all the Prebends c. of the Church acknowledge Canonical Obedience to him And the Publick Notary by the Archdeacons command records the whole matter of Fact in this Affair in an Instrument to remain as Authentick to Posterity After all which the Bishop is introduced into the Kings presence to do his Homage for his Temporalties or Barony by kneeling down and putting his hands between the hands of the King sitting in his Chair of State and by taking a solemn Oath to be true and faithful to his Majesty and that he holds his Temporalties of Him When Matth. Parker in the second year of Queen Eliz. 1559. elected to the Archbishoprick of Canterbury had his Confirmation in the Court of Arches according to the usual form in that behalf This being performed an entertainment for the Vicar General the Dean of the Arches and other Officers of that Court whose presence was requisite at this Solemnity was provided at the Nagâhead Tavern in Cheapside Lond. whereby occasion was taken by the Roman Adversaries maliciously to report That the Nagshead Tavern was the place of Consecration Heyl. The form or manner of making a Bishop and of translating him from one Bishoprick to another differs only in this that in the latter there needs no Consecration And the translation of a Bishop to an Archbishoprick differs only in the Commission which is directed by his Majesty to four or more Bishops to Confirm him 5. Each Archbishop every Bishop and their Officials have their Seals of Office respectively which being affixed to a writing makes the Instrument Authentick whereby the use and practice of Tabellions or Publick Notaries as in Forreign parts is with us much abated For that of a Tabellion allowed by Authority to Engross and Register private Contracts and Obligations his Office in some Countries did formerly differ from that of a publick Notary but now they are as one and the same Office Quoniam Tabellionum usus in Regno Angliae proper quod magis ad Sigilla Authentica credi est necesse ut âorum facilius habeatur Statuimus ut Sigillum habeant non solum Archiepiscopi Episcopi sed eorum Officiales And all Bishops Ordinaries Archdcacons and all others exercising any Ecclesiastical Jurisdiction ought to have the Kings Arms engraven on their Seal of Office but the Archbishop of Canterbury may use his own Seal And all Process Ecclesiastical and Certificates into any Court of Record are to be in the Kings name Teste the Bishop But as to the making admitting ordering and reforming of Chancellors Commissaries Officials Advocates Proctors and other Officers Ministers and Substitutes This the Bishops may do in their own Names and under their own Seals 6. If one be Elected and the Temporalties granted to him yet he is not Bishop before Consecration 41 E. 3. 6. 46 E. 3. 32. Quaere For he may refuse to be Bishop after Election and before Consecration but not after 41 E. 3. 5. b. When upon
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
1 Jac. cap. 3. vid. 17 Ed. 3. cap. 40. 2. The Congé d'Eslire being granted to the Dean and Chapter they proceed accordingly to Election which in the sense here intended as appropriated to this Subject is that Regular Choice which is made of an Ecclesiastical person to succeed in the office and dignity of Bishop in and of that Diocess whose See at the time of such Election is vacant This Election referring to an Episcopacy or the choice of a new Bishop in a vacant See is done by a Dean and Chapter but there are also other Elections Ecclesiastical relating to a Regular choice of other persons to other Offices and Dignities in the Church subordinate to the former but here it is specially meant of such an Election or choice of a new Bishop as is precedent to Confirmation Consecration and Investure or Instalment being made as aforesaid by the Dean and Chapter of a Cathedral Church by vertue of the Kings License and Letters Missive according to his Majesties nomination and pleasure contained in such Letters Missive in pursuance of such License to Elect under the Great Seal of England which Election being made accordingly the Dean and Chapter are to return a Certificate thereof under their Common Seal unto his Majesty This Election alone and of it self be it to an Archbishoprick or Bishoprick if the person Elected were before the Parson or Vicar of any Church Presentative or Dean of any Cathedral or held any other Episcopal Dignity doth not ipso facto make void in Law such former Benefice or Dignity or Deanry because he is not compleat and absolute Bishop meerly by such Election but only Bishop Elect And an Election only of such one to a Bishoprick who had before a Benefice with Cure or any other Ecclesiastical Dignity or promotion doth not make a Cession thereof And it hath been adjudged that a Commendam retinere made to such a person of such a Parsonage Deanry or other dignity Ecclesiastical which the said Parson had before his Election to the Bishoprick is yet good to him notwithstanding such Election and so remains good to him until his Consecration 3. Confirmation hath various senses according to the different Acceptation of the word but here it is mainly intended for that which in order to an Investure of a Bishop is done by the Archbishop or Metropolitan of that Province in which a Bishoprick is void and unto which a new Bishop is to be Invested with such usual Benedictions and Ceremonies as are requisite to the same Note That before an Archbishop or other Bishop is Confirmed Consecrated or Invested he must take the Oath of Fealty unto the Kings Majesty only after which the King under his Great Seal doth signifie his Election to one Archbishop and two other Bishops otherwise unto four Bishops within his Majesties Dominions thereby requiring them to Confirm his Election and to Consecrate and Invest the person Elected After which Confirmation and Consecration he is compleat Bishop to all intents and purposes as well to Temporalties as Spiritualties And now he hath plenam potestatem tam Jurisdictionis quam Ordinis and may therefore after his Consecration certifie an Excommengment and upon his Confirmation the power of the Guardian of the Spiritualties doth cease and a Writ for Admission of a Clerk to a Benefice awarded Episcopo Electo Confirmato hath been held to be good Likewise the King may by his Letters Patents after such Confirmation and before Consecration grant unto such Bishop his Temporalties which Grant from his Majesty is held to be potius de gratia quam de jure but if the Bishop of one Diocess be translated to a Bishoprick in another there needs no new Confirmation of him In the Canon de Confirmatione Episcoporum of Othobon's Constitutions it is Ordained in haec verba viz. Vt cujus Electionis Episcopalis Confirmatio postulatur inter caetera super quibus Inquisitio Examinatio praecedere debet Secundum Canonum Instituta illud exactissime inquiratur utrum plura Beneficia cum animarum cura qui Electus est antequam eligeretur habuerit Et si habuisse inveniatur an cum eo super hoc fuerit dispensatum Et an Dispensatio si quam exhibuerit vera sit ad omnia beneficia quae obtinuit extendatur Et si in aliquo Praemissorum is ad quem Confirmatio spectat Electam deficere sua discussione compererit eidem nullatenus munus Confirmationis impendat 4. There is also Confirmation of another kind and far remote in sense from the former not of any Ecclesiastical consideration nor of any Affinity with the other otherwise than Nominal and that is the ratifying or confirming of an Office or an estate in a Place or Office to one who hath or formerly had the possession thereof by a good Title but voidable though not actually and at present void To explain this A Bishop grants his Chancellorship by Patent to one for term of his Natural life this Grant is good to the Patentee and not in it self void yet upon the Bishops death it is voidable unless it be corroborated and ratified by the Confirmation of the Dean and Chapter This is not the Confirmation here intended but the Confirmation of the Election of a new Bishop in order to his Consecration and Investure which though heretofore was by the Bishop of Rome when he claimed a Spiritual Jurisdiction in this Realm yet now since the Stat. of 25 H. 8. c. 20. the same is at his Majesties Command performed by the Archbishop or Metropolitan of the Province wherein such Bishoprick is void and two other Bishops otherwise by four such Bishops within his Majesties Dominions as to whom under his Broad Seal he shall signifie such Election commanding them to Confirm the same as also to Consecrate and Invest the person whose Election to the Bishoprick is so Confirmed as aforesaid 5. The Confirmation of the Election of Bishops to vacant Sees according to the Canon Law and as practised in such Kingdoms beyond Sea where the Pope doth claim and exercise a Spiritual Jurisdiction is as to the mode and solemnity thereof quite another thing to what the practice is with us in this Realm 6. In France though the Nomination of a Bishop to succeed in a vacant See belongs to the French King yet if he doth not Nominate within Six or Nine months next after the death of the former Bishop Jus devolutum est ad Papam if a Bishoprick be there void be it quomodocunque whether by Cession or otherwise the Law speaks indefinitely in that case the King shall Nominate in France who shall be the new Bishop but then he must Nominate within Six or Nine months which being Elapsed and no Nomination he cannot afterwards Nominate Nam jus sit ad Papam devâlutum nec poterit purgare moram For the Law in that Case and in that Kingdom is that
Fee-simple may pass to them without the word Successors because in Construction of Law such Body Politick is said never to die This must be understood only in reference to their taking of the thing granted in their Politick not Natural Capacity 11. One Bishop may possibly have two Chapters and that by Union or Consolidation as in the Bishop of Waterford's Case who had the Bishoprick of Lismore and the Chapter thereof united to that of Waterford In which Case although the Chapter of Lismore only Confirmed the Grants of Lands belonging to Lismore and the Chapter of Waterford only confirmed the Grants of Lands belonging to the Bishoprick of Waterford yet because the Union there was not extant the Judges held the Confirmation in manner aforesaid to be good but otherwise all the Judges held that both Chapters ought to have Confirmed For it seems if a Bishop hath two Chapters both must Confirm his Leases 12. A Parsonage in the Diocess of W. is annexed to a Prebend in S. the Prebend makes a Lease for years which is Confirmed by the Bishop and Dean and Chapter of S. It was held by the Court to be good without the Confirmation of the Bishop of W. in whose Diocess it is In Eyre's Case it was resolved That Chapters are not of a capacity to take by Purchase or Gift without the Dean who is their Head And in the Case of Eaton-Colledge where a Lease was made by the Dean and Chapter of the Colledge of Eaton whereas they were incorporated by the Name of the Dean and Chapter of the Colledge of St. Maries of Eaton Resolved that the Lease was void for the Misnosiner Yet whereas the Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free-Chappel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majestie 's Free-Chappel of the Castle of Windsor in the County of Berks Resolved the Lease was good For although the King in the Act of Parliament calls it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Likewise whereas Christs-Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon and they made a Lease by the Name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon and the Liberties de Academia did extend further than the Liberties of the City yet it was adjudged a good Lease because the substance of the Corporation was inserted in the words of the Lease CHAP. VIII Of Archdeacons 1. What an Archdeacon is his Office and Jurisdiction 2. The several kinds of Archdeaconries and how many in England 3. Whence the Archdeacons power is derived and whether a Quare Impedit doth lie of it or not 4. In what case Action lies against an Archdeacon for refusing to give Induction to a Clerk Instituted by the Bishop 5. Archdeaconry not comprized under the notion of a Benefice with Cure of Souls 6. Process of Quorum Nomina prohibited by the Canon to be issued by any Archdeacon 7. How often an Archdeacon may have his Visitation and what his Office or Power therein is 8. How a person ought to be qualified that may be an Archdeacon It is an Ecclesiastical Dignity 9. Cardinal Otho's Constitution touching the Archdeacons government in his Visitations 10. How Archdeacons are distinguished at the Canon Law 11. Conformity thereto in the practice of the Common Law 12. A Case at Common Law touching a Lease for years of a Glebe made by an Archdeacon 13. The same Case somewhat otherwise reported 14 Whether a Quare Impedit lies of an Archdeaconry 1. ARCHDEACON from archos Princeps or Chief and Diaconos Deacon that is the first or chief of the Deacons Sum. Host de Offic. Archid. c. 1. de Scrut in Ord. fac being according to the Canon Law such as hath obtained a Dignity in a Cathedral Church to have the Priority among the Deacons and first in Jurisdiction next after the Bishop Sum. Host ibid. For as of Common Right all Ecclesiastical matters within the Diocess appertain to the cognizance of the Bishop so under him to the Archdeacon excepting only such things as by Law are specially prohibited And therefore is said to be dignified with this Title for that in many things he doth supply the room of the Bishop to whom he is in precedency to others subservient and unto whom his service chiefly relates Every Bishop be it Archbishop or other hath under him an Archdeacon for the better discharge of his Cure He hath Jurisdiction of Common right which may vary according to Circumstances and the Custome of the place and therefore in some cases it is Jurisdictio Ordinaria in others it is Delegata And although regularly as such he doth not exercise any Jurisdiction within the Church it self yet it cannot be denied but that an Archdeaconry is an Ecclesiastical Dignity Fran. de Aret. in Concil 23. His Office and Jurisdiction by the Canon Law is of a far larger extent than is now practicable with us otherwise we should not there find him so frequently styled Oculus Episcopi for that he is by the very Law the Bishops Vicar in several respects and therefore may where the Bishop himself conveniently cannot keep the Triennial Visitations or not oftner than once a year save where emergent occasions do require it oftner He hath also under the Bishop the power of Examination of Clerks to be Ordained as also of Institution and Induction likewise of Excommunication Injunction of Penance Suspension Correction Dispensations of hearing determining and reconciling of Differences among the Clergy as also of enquiring into inspecting and reforming Abuses and Irregularities of the Clergy with a power over the Sub-deacons and a charge of the Parochial Churches within the Diocess In a word according to the practice of and the latitude given by the Canon Law to supply the Bishops room and as the words of that Law are in omnibus vicem Episcopi gerere Synt. jur l. 15. cap. 20. de Archidiacono 2. The Diocesses within this Realm of England are divided into several Archdeaconries they being more or less in a Diocess according to the extent thereof respectively and in all amounting to the number of Threescore And they divided again into Deanaries which also are subdivided into Parishes Towns and Hamlets Of these Archdeaconries some are by Prescription some by Law and some by Covenant Which difference hath this Operation in Law That the Jurisdiction of an Archdeaconry by Prescription or de jure is exclusive to the Jurisdiction of the Bishop insomuch that a Prohibition lies for such Archdeacon against the Bishop if he intermeddle Juridically with any matters or things within such Archdeaconries
be a Licentiate in Law or Divinity Cons Trid. 8. Cessio de Reform general Can. 12. They are called the Chief of the Deacons C. 1. de Scrutin in Ord. faciend in whom there is an Ecclesiastical Dignity inherent jure Communi And in some places they have this Dignity sine Officio for Innocentius observes That in Ecclesia Parmensi Archidiaconus nullum exercet Officium nihilominus dignitatem habet Innocent in c. de multa de Praebend But regularly according to the Canon Law Archdeacons as to their Dignity Office and Degree are to be reputed according to the Law Usage and Custome of their own Church and Chapter Hostiens Sum. de Offic. Archid. The Archdeacon is Oculus Episcopi and ipso jure his Vicar in Visitations Corrections and Dispensations in matters Ecclesiastical within his Jurisdiction he hath power of reforming the Clergy of examining and presenting to the Bishop such as are to be Ordained and of putting into possession such as are Presented Instituted and Inducted into Ecclesiastical Benefices 9. Cardinal Otho in his Canon de Archidiaconis hath Ordained That all Archdeacons do prudently and faithfully visit the Churches within their respective Archdeaconries as touching the Sacred Vessels and Vestments thereof and generally to enquire into the Temporalties and Spiritualties belonging to the same and that they endeavour to amend what they find amiss Also that they grieve not the Churches with superfluous charges or expences but require only moderate procurations in their Visitations wherein they may not presume to receive money of any when Crimes are to be corrected or punished nor Sentence any unjustly on purpose to extort money from them on pain of double the Sum to pious uses at the discretion of the Bishop besides other Ecclesiastical punishment Constit Othonis de Archdiaconis 10. The Canon Law doth distinguish of Archdeacons the whole Title throughout De Offic. Archidiac regularly speaks of an Archdeacon General who hath not any Archdeaconry distinctly limited Sed tanquam Vicarius fungitur vice Episcopi Vniversaliter and doth represent the Bishop Extra de Consue non putamus Otherwise it is in him who hath a distinct Limitation of his Archdeaconry for then he hath a Jurisdiction separate from the Bishop which where it is by Custome may be prescribed Gloss in ver Visitent dict Const Otho Consonant to this seems that difference which the Judges took in the Case between Chiverton and Trudgeon wherein they held and agreed That there is a Jurisdiction of one Archdeacon and there is the Jurisdiction of another which is but a peculiar Jurisdiction for the Archdeacon is an Officer who hath a Court of his own in which he hath the Probat of Testaments de jure And Doderidge Justice said That he is a principal Officer belonging to the Bishop est quasi Oculus Episcopi but otherwise it is of one who hath but a special Jurisdiction as the Archdeacon of Richmond hath to make Institutions and so 21 H. 6. 23. the Dean of Pauls in that case hath special Authority in St. Panchridge Hill 17 Jac. B. R. Case Chiverton and Trudgeon Roll. Rep. 11. In the Case between Gastrell and Jones it was said by Ley Chief Justice That it is to be considered what Authority the Archdeacon hath in his own nature as such and what power he may have by Prescription or otherwise The Archdeacon is a Minister subordinate to the Bishop viz. Deputy and Vicar or an Officer under him for in case of Induction the Bishops Warrant is necessary to impower him to give the same He hath also Judicial power but it is not exclusive to the Episcopal Authority but the Bishop is his Superiour Both are Judges but the one subordinate to the other c. And if Sentence be given in the Archdeacons Court the Appeal thence shall not be in the Bishops Court but in the Archbishops And if a man dies Intestate having goods within the Archdeacons Jurisdiction and other Goods within the Jurisdiction of the Ordinary the Archbishop as he said shall commit the Administration to the Archdeacon 12. The Archdeacon of H. having the Parsonage of A. appropriate to it Lett the Land parcel of his Glebe for fifty years in Anno 12 Eliz. The Bishop of E. Patron of the Archdeaconry and the Dean and Chapter confirm it The Archdeacon dies another is Collated to the Archdeaconry It was the Opinion of the Justices in this Case first That the Confirmation by the Bishop was not void for that it was but an Assent only to the Lease of the Possession of the Archdeaconry and not of the Bishop and therefore not within the Statute of 1 Eliz. The second Point was Whether this Lease was void by the Statute of 13 Eliz. Quaere for not Resolved Mich. 37 38 Eliz. B. R. Sir Edw. Denny and Eakenstall 's Case Cro. par 1. 13. The same Case Reported by More An Archdeacon having a Parsonage appertaining to his Archdeaconry before the Statute of 13 Eliz. made a Lease for forty years of the Parsonage which was Confirmed after the Statute adjudged the Lease and Confirmation both good Arkingsall or Eakenstall and Denny's Case More 's Rep. 14. A Quare Impedit was brought by the Executors of J. S. for not suffering them to Present to the Archdeaconry of D. which became void in the life of the Testator and the Writ and Count both supposed a disturbance to the Testator in his life In nunc retardationem Executionis Testamenti praedict In this Case it was Resolved 1. That a Quare Impedit did lie of an Archdeaconry 2. That the Writ as brought should abate because it was in nunc retardationem which cannot be of a Disturbance in the life of the Testator But it was agreed that the Executors might have a special Action upon the Case for their Disturbance Trin. 31 Eliz. B. R. Smalwood and the Bishop of Coventry and Marshes Case Cro. par 1. CHAP. IX Of Procurations Synodals and Pentecostals 1. Procuration what whence so called and how paid 2. Whether Procurations be only due ratione Visitationis 3. Procurations Anciently paid in Victualibus and not in Money how paid to Archdeacons in Lindwoods time 4. Whether Procurations may be payable by Custome to Archdeacons sine Visitatione 5. Archdeacons to Visit personally if otherwise then how the Procurations are payable 6. Not above one Procuration to be paid how that is to be understood 7. The Number of the Visitor's Attendants by the Council of Lateran in reference to Procurations and how many an Archdeacon may have by the Canon 8. Synodals the threefold signification of that word 9. The Synodal anciently called Cathedraticum Synodaticum what the Cathedraticum was why so called the Original thereof and how it differs from Procuration 10. Pentecostal what it is when by and to whom payable the probable Original thereof 11. A remarkeble Case relating to this Subject that was Resolved and Adjudged in Ireland 1. THe
the Revenues of the Church first came to be divided and alotted to several Ministeries then it was that this payment was first made to the Bishop by the Beneficed Clergy within his Diocess Duaren ut supr l. 2. c. 1. fo 53. It is probable that this division of the Church Revenues was not far distant in time from the first or original distinguishment of Parochial Bounds upon which affair Pope Euaristus otherwise called Anacletus Graecus did first enter about the year 110. Volateran l. 22. Anast Biblioth Baron Annal. ad An. 112. nu 4 5 6. and was afterwards carried on by Pope Dionysius about the year 260. Baron Annal. ad An. 260. nu 17. Parochial Distribution in England was by Theodorus Archbishop of Canterbury about the year 668. Spelm. Concil 152 But Speed saith by Honorius the fifth Archbishop also of Canterbury about the year 636. It may not hence be inferr'd that this Cathedraticum or Synodal was only paid ratione Synodi for it was sometimes and very anciently paid also at Visitations as appears by the seventh Council at Toledo mentioned in the Decree 10. q. 3. c. inter caetera casus ibi where there is a Canon against the exacting of more than Two shillings only pro Cathedratico in Episcopal Visitations This Cense or payment though it be Onus Ecclesiasticum yet it is not Onus innovatum but Onus Ordinarium and by imposition of Law as appears by the Provincial Constitutions Solutio Cathedratici Synodatici Procurationum ratione Visitationis alia hujusmodi de quibus non dubitatur quin sunt Onera Ordinaria suum capiunt effectum ab impositione Legis Lindw de Offic. Vic. c. quoniam gl in ver Onera Ecclesiastica Yet Procurations differ from the other in this that Procurations are only Pensions but the other are properly Census The Synody or Synodal is by the Stat. of 34 H. 8. reckoned as a Church-due for recovery whereof provision is made by that Act and good reason for the said Synody or Synodal is a Pension certain and valued in the King's Books 10. The aforesaid Ingenious Author of the Historical Discourse touching Procurations c. after his deep search into Antiquity doth conjecturally conceive that the Pentecostal otherwise called Whitson-farthings is nothing else but the Annual Commemoration continuation or repetition of an Ancient payment or pension issuing out of the Oblations brought by the people long since specially at the time of the Foundation or Dedication of their several Churches or at some other Solemnity viz. the moiety or Third part of the Oblations then made The same being reserved by the Bishop and by a Contract seu quasi Contractu between him and the Founder of such Church or Priest assigned to attend the same settled in and upon the Episcopal See and payable yearly at or about the Feast of Pentecost These Pentecostalia were not as some conceive the Peter-pence here anciently paid for they were usually paid either at the Feast of St. Peter and Paul or on Lammas day but these Pentecostals seem to be paid upon or about the time that doth chiefly denominate the same viz. at the Feast of Pentecost and in the nature thereof seem to have reference to an Oblation frequently made by the Christians in the Elder times of the Church and to have some tendency to that Liberal Devotion which was then as frequent as Sacriledge is now In Leg. 18 Guilielm Conquestor De Denariis S. Petri seu Vectigali Romano viz. Liber homo qui habuerit Averia Campestria 30 denariis aestimanda dabit Denarium S. Petri. Pro 4 denariis quos donaverit Dominus quieti erunt Bordarii ejus ejus Boner ejus Servientes Burgensis qui de propriis Catallis habet id quod dimidia Marca aestimandum est det Denarium S. Petri. Qui in Lege Danorum est Liber homo habet Averia Campestria quae dimidia Marca in argento aestimantur debet dare Denarium S. Petro. Et per Denarium quem donaverit Dominus erunt quieti ii qui resident in suo Dominico Vid. Sâldeni ad Eadmerum Notae Spicelegium p. 179. Leg. 18. By this Law of William the Conquerour it appears that the Peterpence had no affinity with the Pentecostals In Ancient times when the Bishop did visit Ecclesiatim his usage was to celebrate the Mass in the Church which he visited which indeed was every Parish within his Diocess and that by his Episcopal Authority the whole Diocess in respect of the Bishop being by the Law but Paroechia sua 10. q. 3. c. Quia Duarenus passim as the whole Province is said to be in respect of the Lord Archbishop of Canterbury At this Mass the people used to make their Offerings to the Bishop and one of the causes or reasons why or wherefore the people in Ancient times were obliged to bring their Oblations to the Church was propter Consuetudinem and that certis Festivitatibus among which the Feast of Pentecost was and is a most special one at which Feast there was in many places here in England an Oblation Anciently made by inferiour Churches and Parishes to the principal Mother-Church and whence probably the word Pentecostalia had its original denomination These Offerings by the Canon Law were and are only due to the Clergy and interdicted to the Laity sub districtione Anathematis 10. q. 1. c. Quia Sacerdotes c. Sanct. Patrum ibi In some places the Deans and Prebendaries of Cathedral Churches have them It is said That in the Cathedral Church of Salisbury there is a greater and a lâss distinguished and known by this difference of Major Minor pars Altaris And in some Diocesses they are settled upon the Bishop and Archdeacon and made part of their Revenue for which the King hath Tenths and Subsidies The Cathedral or the Mother-Church of Worcester was Anciently and before the dissolution a Priory and among other Revenues had these Pentecostalia or Whitson-farthings yearly paid sub nomine Oblationum or Spiritual Profits tempore Pentecostes After the Dissolution when King H. 8. about the three and thirtieth year of his Reign new-founded and reendo'wd the said Church he restored these Pentecostalia after he had hâld them about a year in his own hand to the said Church which as it is reported the Dean and Prebendaries thereof receive at this day and as appears by the Letters Patent Henricus Octavus c. Sciatis quod Nos de gratia nostra speciali ac ex certa scientia ac mero motu nostris dedimus concedimus ac per praesentes damus concedimus Decano Capitulo Ecclesiae Cathedralis Christi beatae Maria Virginis Wigorn. omnes illas Oblationes Obventiones sive Spiritualia proficua vulgariter vocat Whitson farthings annuatim collect sâve recepta de diversis Viliatis in Comitat. nostris Wigorn. Warwic ãâã infra Archidiaconatum Wigorn
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
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
he was employed abroad in Foreign Embassies whereby both these Names or styles became at last in common understanding as it were Synonymâus 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-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
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 Diocâss 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 Diocâss 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
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
Law Provisional touching the Building of new Chappels 18. Whether a Seat in the Church and Priority in that Seat claimed by Prescription be Triable at the Common Law by Action upon the Case 19. A Case in Law touching a Tax made in a Parish for the making of new Bells for the Church 20. Whether a Tax for Repairs of the Church may be made by the Church wardens alone without the Major part of the Inhabitants 21. Church-Seats in the generality are in the Ordinaries power to dispose 22. Divers other Cases at the Common Law pertinent to the subject of the Premisses 23. In what respects an Inhabitant in one Parish having Land in another may or may not be Taxed as to the Church of that Parish where the Land lies 24. The difference in Law between a Parsons grant to a man his own Tithes and his grant to him the Tithes of another man as to the validity of the Grant 25. Disposal of Seats in the Body of a Church belongs of Common right to the Ordinary of the Diocess 26. In what respect a man inhabiting in one Parish shall be charged towards the Reparation of the Church of another where he hath Land and in what respects not so 27. Rates for Reparation of Churches are cognizable only in the Ecclesiastical Court and no Prohibition notwithstanding any inequality in the Rate 28. Repairers of a Chappel of Ease not discharged thereby of Reparations of the Mother-Church 29. Land in a Parish not to be Rated for the Ornaments of a Church That Rate to be according to the personal Estate 30. In what case a Prohibition lies to a Suit for Reparations of a Church not so as to a Rate made by the Major part of the Parishioners for the Ornaments of the Church 31. The Bounds of a Parish not Triable in the Ecclesiastical Court though the difference be between two Spiritual persons 32. Prohibition where a Vicar sued the Parson Impropriate for Dammages for cutting down the Trees growing in the Church-yard 33. Prescription of Repairing a Chappel of Eâse no discharge from repairing the Mother-Church 34. The charge of Repairing a Church refers to Land of providing Ornaments of the Church to the personal Estate and how to be apportioned between Landlord and Tenant 35. Action of Trespas lies for the Heir of such whose Coat-Armor or Monument in Church or Church-yard is by any defaced or demolished be it by the Parson the Ordinary or by any other 36. A Case in Law touching a disturbance of sitting in certain Seats in a Chancel of a Church 37. Certain Cases in Law touching striking in a Church and Church-yard and drawing a Weapon in the same 38. The difference taken between having a Seat in the Isle of a Church and a Seat in the Body of the Curch 39. A Prohibition denied on a Prescription of not Repairing a Mother-Church in regard such Prescription is meerly Spiritual 40. The Ecclesiastical Court not to intermeddle with the Precincts of Parish-Churches 41. Towards Church-Reparations all Lands within the Parish as well of Foreigners as Parishioners are ratably liable 42. Controversies touching Seats in Churches determinable in the Spiritual not Temporal Courts In what Cases the Common Law hath took cognizance thereof 1. CHURCH Ecclesia ãâã ãâã ãâã ãâã ãâã from the old word ãâã ãâã ãâã ãâã ãâã h. e. ãâã ãâã ãâã ãâã ãâã or rather ãâã ãâã ãâã ãâã ãâã h. e. evocare being an Assembly of men gathered out of all Mankind or evocatus per Evangelium or from the Hebrew Cahal h. e. Congregatio the true visible Church being a Congregation of Faithful men in which the pure Word of God is preached and the Sacraments duly ministred according to Christ's Institution in all things necessary to the same This in a Theological sense but the word Church in a Legal sense as here chiefly intended differs from the former as far as Dead Walls do from Living Saints there being no more here designed to be touch'd at than what refers rather to the Place than to the Persons Churches are of three sorts Cathedral Collegiate Parochial The Bishop is the Incumbent of the first Priors and Abbots were and Heads of Colledges are Incumbents of the second and Parsons of the third commonly called a Rectory being either a Parsonage or a Vicarage And that either 1 Ratione dotationis 2 Fundationis 3 Fundi 2. The Emperour Justinian Decreed That the Lands of the Church should not be sold alienated or exchanged unless it were to the Prince's house or to or with another like Religious place and that in equal goodness and quantity or that it were for the Redemption of Captives But by the Statute of primo Jac. the Possessions of the Church are protected from alienation or diminution in all respects and so as that they shall remain and continue according to the true intent of their Foundation to their Successors for ever to the uses and purposes therein limited 3. By the Common Law the Church and Church-yard are it seems the Soyl and Freehold of the Parson but the use of the Body of the Church and the Repairs and Maintenance thereof is common to all the Parishioners albeit the disposal of the Pewes in the Body of the Church or an Isle or Chappel joyning to the Body and the disposing of the charges of the Repairs thereof belong to the Ordinary insomuch that no man can challenge a Seat in the Body of the Church without shewing some special reason for the same All which appears in the Case of Boothby against Baily where Boothby being Executor of Gilbert brought a Prohibition against Baily and his Surmize was That whereas Sir Bernard Whetston was seized of the Mannor of Woodford-Hall and that he and those whose Estate he hath in the same had used time out of mind to have a peculiar Pew in the Body of the Church and that the Defendant by Suit in the Ecclesiastical Court sought to dispossess them of the same And by the Opinion of the whole Court this was no sufficient ground of a Prohibition for though the Church and Church-yard be in Law the Soyl and Freehold of the Parson yet the use of the Body of the Church and the repair and maintenance thereof is common to all the Parishioners And for avoiding of confusion the distribution and disposing of Seats and charges of Repair belong to the Ordinary and therefore no man can challenge a peculiar Seat without a special reason But if it had been Prescribed That Sir Bernard Whetstone c. had used time out of mind at their own costs to maintain that Pew and had therefore had the sole use thereof the Prescription might have stood and been warrant for a Prohibition though the Pew were in the Body of the Church And so it is in the like case of an Isle or Chappel adjoyning to the Body of the Church upon the same difference whether it hath been maintained by the whole Parish or
to follow the value of the Land and for that the valuing of the Land properly belongs to them As to the second Noy moved That although the Principal be a thing Spiritual yet it is now mixt with a Custome as in the Case de modo Decimandi the Ecclesiastical Court is ousted of his Jurisdiction Houghton Justice It seems so as to other things but the Church being the House of God is more to be regarded and a custome in prejudice to the Reparations of the Church is void for of common Right the House and all Lands are chargeable to the Reparations And the Court commanded him to make a Suggestion of the Custome omitting the value and then they would consider whether a Prohibition should go or no. In Stephenson's Case it was Resolved that if one hath Lands in one Town and doth inhabit in another he shall be compelled to be contributary to the Reparation of the Parish Church where the Lands are 14. 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 Thirtieth year of Henry the Eighth by the instigation of the Lord Cromwell 15. Chappel Capella of the French Chapelleé that is aedicula Of this there seems to be three sorts the one such as adjoyns to the Church as parcel of the same built by Persons of Honour ut ibidem Familiaria Sepulchra sibi constituant Another that which is separate from the Mother-Church in a Parish of a large extent built for the better ease and convenience of such Parishioners whose habitations are remote and far distant from the Parish-Church and thence vulgarly called a Chappel of Ease being served by some inferiour Curate at the charge either of the Rector or of such as for whose convenience it is according to the custome or composition A Chappel of Ease is where there is a Parochial Church in the same Parish wherein the Sacraments are administer'd and not in the Chappel 8 H. 6. 32. which appertains to the Parochial Church and the Parson thereof Ibid. And a Parochial Church cannot be a Chappel 8 H. 6. 37. The Third is that which is called a Free-Chappel which in point of Maintenance and endowment as also in respect of exemption from the Ordinaries Jurisdiction seems to differ from both the former and hath perpetual maintenance towards the upholding thereof by a charitable Endowment thereof without the charge of the Rector or Parish So that a Free-Chappel or Libera Capella is according to the opinion of some no other than a Chappel founded within some Parochial precincts for Divine Service by the bounty of some well disposed person over and above the mother-Mother-Church to which it was at the Parishioners choice or liberty for whose convenience it was erected to repair or not and endowed with Maintenance by the Founder and therefore called Free. Notwithstanding which others are of opinion and that more probable That these only are Free Chappels which are of the Foundation of Kings and by them exempted from the Jurisdiction of the Ordinary but the King may also License a Subject to Found such a Chappel and by his Charter exempt it from the Visitation of the Ordinary in respect of which exemption and from the Jurisdiction of the Diocesan it appears by the Register of Writs to be called Free H. 8 E. 3. B. R. Rot. 97. Episcopus Exon attachiat ad respondendum Domino Regi quare exerceret Jurisdictionem in Capella Regia Sanctae Burianae in Cornub c.. The King himself Visits his Free Chappels and Hospitals and not the Ordinary The Lord Chancellor executes it for the King These Chappels were all of them together with Chantries given to the King Of this kind is the Free Chappel of St. Martin le Grand The Canonists are not agreed touching the derivation of this word some take it à capiendo Laicos others à Capra because they conceive that they resemble those Cottages which were wont to be covered over with Goat-skins Others à cappa Divi Martini Others è Chapellee Gallic 16. In the Parish of Aston in the County of Warwick which hath a Parish Church is a certain Chappel of Ease called Castle-Birmidge Chappel and a certain Precinct called Castle-Birmidge the Inhabitants thereof resort to the said Chappel and there Marry Christen and receive the Sacraments there are also Church-wardens and the Inhabitants have a Perambulation there of it self notwithstanding all which when it came in debate whether the Parishioners of the Chappel the Parish-Church of Aston being in decay might be Taxed towards the Reparation thereof they obtained a Prohibition on a Surmize which not appearing to be true a Consultation was awarded yet in that case it was held That if two Churches Parochial be united the Reparation shall be several as before And that a Chappel of Ease is part of the Parish de communi jure liable to reparations of the Parish Church that such as have a Chappel of Ease may resort to the Parish Church if they so please and that the Parson of the Parish-Church may Officiate at the Chappel of Ease if he will 17. The Emperour Justinian in the fifth Collation of his Novel Constitutions commonly called the Authenticks emitted by him after the Digest and the Code hath Ordained That no man build a Chappel in his House without the leave of the Bishop and before he consecrate the place by Prayer and set up the Cross there and make procession in the place and that before he build it he allot out Lands necessary for the maintenance of the same and those that shall attend on God's Service in the place In which Collation there is also that which seems to bear some conformity with the Acts of Uniformity established in this Realm against Seditious Conventicles For in that Collation it is likewise Ordained by the said Emperour That the sacred Mysteries or Ministeries be not done in private Houses but be celebrated in publick places lest thereby things be done contrary to the Catholick and Apostolick Faith unless they call to the celebrating of the same such Clerks of whose Faith and Conformity there is no doubt made or those who are thereunto deputed by the Bishop But Chappels and places to pray in every man may have in his own House if any thing be done to the contrary the House wherein these things are done shall be confiscate and themselves punished at the discretion of the Prince 18. A. the Father had all his life the chief place in a certain Seat in the Church and H. his Son likewise claimed the same and C. disturb'd him in a violent manner the Archbishop of York in whose Jurisdiction this was granted an Inhibition against C till the matter were determined before him and Excommunicated him for Disobedience C. claimed the place by Prescription and for that Reason prayed a Prohibition
a day extraxit gladium against J. L. ipsum percussit and because the Statute was If any person maliciously strik another or shall draw any Weapon with an intent to strike any person And the Indictment was quod extraxit but does not say ad percutiendum And because it is quod percussit without saying malitiose the party was discharged upon Judgment If there be a Parson Appropriate of a Church and also a Vicar endowed of the same Church the Trees in the Church-yard do there belong to the Vicar and not to the Parson for that there the Vicar ought to repair the Church and he shall have the Trees which ought to repair the Church Dubitatur Mich. 13 Jac. B. R. Bellamie's Case The Lord Coke said That for the Body of the Church the Ordinary is to place and displace in the Chancel the Freehold is in the Parson and it is parcel of his Glebe Trespass will lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House 23. An Inhabitant of the Parish of D. hath Land in his occupation in the Parish of S. The Church-wardens of S. and other the Parishioners there make a Tax for the Reparation of the Church for Ornaments of the Church and for the Sexton's wages amounting to the sum of 23 l. and the Tax of the Church being deducted cometh but to 3 l. only The Foreigner which dwells in D. is sued in the Ecclesiastical Court by the Churchwardens of S. for his part of the said Tax and he prays a Prohibition Henden said he well agreed the Case of Jefferies 5 Coke that he should be charged if this Tax had been for the Reparation of the Church only for this is in nature Real But when that is joyned with other things which are in nature personal as Ornaments of the Church or Sexton's wages with which as it seems he is not chargeable then Prohibition lies for all Flemming Chief Justice and Williams Justice thought fit that he should not have a Prohibition for as well the Reparations of the Church as the Ornaments thereof are meerly Spiritual with which this Court hath nothing to do and Flemming said That such Tax is not any charge issuing out of the Land as a Rent but every person is taxed according to the value of the Land But Yelverton and Fenner to the contrary that a Prohibition doth lie for the same diversity which had been conceived at the Bar and also they said That he which dwels in another Parish doth not intend to have benefit by the Ornaments of the Church or for the Sexton's wages And for that it was agreed by all by the Chief Justice Williams and the others That if Tax be made for the Reparation of Seats of the Church that a Foreigner shall not be taxed for that because he hath no benefit by them in particular and the Court would advise In Penner and Crompton's Case it was held That none shall be chargeable for contribution to Church-reckonings if he do not inhabit there or consent to them More 's Rep. 24. Note upon a motion for a Prohibition That if a Parson contract with me by word for keeping back my own Tithes for three or four years This is a good Bargain by way of Retainer and if he sue me in the Ecclesiastical Court for my Tithes I shall have a Prohibition upon this composition But if he grant to me the Tithes of another though it be but for a year This is not good unless it be by Deed. 25. The disposal of Seats in the Body of the Church doth belong of common right to the Ordinary of the Diocess so as he may place and displace at his pleasure If a man and his Ancestors and all those whose Estate he hath in a certain Messuage have used time out of mind c. to repair an Isle of the Church and to sit there and none other the Ordinary may not displace him for if so then a Prohibition lies for that he hath it by prescription upon reasonable consideration Likewise if a man prescribe That he and his Ancestors and all those whose Estates he hath in a certain Messuage have used to sit in a certain Pew in the body of the Church time out of mind c. in consideration that he c. have used time out of mind to repair the said Seat If the Ordinary remove him from that Seat a Prohibition lies for in this case the Ordinary hath not any power to dispose thereof for that is a good prescription and by intendment there may be a good consideration for the commencement of that prescription although the place where the Seat is be the Parson 's Freehold In this case a Prohibition was granted to the Bishop of Exeter for one Cross But if a man prescribe to have a Seat in the Body of the Church generally without the said consideration of repairing the Seat the Ordinary may displace him But with the Seats in the Chappels annexed to Noblemens Houses it is said the Ordinary hath nothing to do If there be a custome in a Parish that 12 of the Parishioners may chuse the Churchwardens which Churchwardens have power by the custome to repair the old Seats and erect new in the Body of the Church and to appoint who shall sit in them And the Churchwardens so elect erect a New Seat in the Body of the Church and appoint a certain person to sit there and after the Ordinary decree That another shall have the Seat In this case it is said a Prohibition lies for the custome hath fixt the power of disposing the Seats in this case in the Churchwardens and a Prohibition was granted But it was also partly granted for that the Sentence of the Ordinary was That T. should have the Seat to him and his Heirs and that none should disturb him on pain of Excommunication which is unreasonable and by that Sentence he and his Heirs shall have it although they do not Inhabitants within the Parish 26. The Ecclesiastical Court hath cognizance of the Reparations of the Body of the Chuech If a man that dwells in one Parish hath Land in another the which he keeps in his own hands and occupation he shall be charged for that Land for the Reparation of the Church of that Parish where the Land lies for that he may come when he will and it is a charge in respect of the Land But if an Inhabitant in one Parish lease out his Land which he hath in another Parish reserving Rent he shall not be charged where the Land lies in respect of the Rent because there is a Parishioner and an Inhabitant that may be charged And a man cannot be charged in the Parish where he doth inhabit for Land which he hath in another Parish to the Reparation of the
Church for that he may then be twice charged for he may be charged for that in the Parish where the Land doth lie in which case Prohibition hath been granted 27. If a Citizen of London erect a House in the Parish of A. with intent of dwelling there in time of Sickness at London and hath not any Land in the Parish and after is Assessed 20 s. for Reparation of the Church where others who have 100 acres of Land in the same Parish pay but 6 d. yet no Prohibition shall be granted on a Suit for the said 20 s. in the Ecclesiastical Court for that they have Jurisdiction of the thing and for which reason they may order it according to their Law 28. If there be a Chappel of Ease within a Parish and any persons of the Parish have used time out of mind c. alone and by themselves without others of the Parishioners to repair that Chappel of Ease and there to hear Divine Service and to Marry and all other things only they Bury at the Mother-Church yet they shall not be discharged of Reparations of the Mother-Church but ought to contribute to the same for the Chappel was Ordained only for their ease But if Inhabitants within a Chappelry prescribe to be discharged time out of mind c. of the Reparation of the Mother-Church and are sued in the Ecclesiastical Court for the same a Prohibition lies on that Surmize 29. If a man be rated for the Ornaments of the Church according to the Land which he hath in the Parish a Prohibition lies for the Rate for that ought to be according to the personal Estate Also if a man who is not any Inhabitant within the Parish but hath Land there be rated for the Ornaments of the Church according to the Land a Prohibition lies for the Inhabitants ought to be rated for that and it was said by Yelverton That it had been often so Resolved 30. If all the Parishioners are not rated for the Reparation of the Church but some are and some are not and those that are rated be sued in the Ecclesiastical Court a Prohibition will lie But if the major part of the Parishioners of a Parish where there are four Bells doth agree that there shall be a fifth Bell made and it be made accordingly and a Rate made for payment of the same it shall bind the lesser part of the Parishioners although they did not agree to it for otherwise any obstinate persons may hinder any thing intended to be done for the Ornament of the Church and therefore in this case a Prohibition was denied 31. The Ecclesiastical Court may not try the Bounds of a Parish if therefore there be a Suit there depending for that a Prohibition will lie as where the difference is between two Vicars concerning a Chappel of Ease As when the Vicar of a Parish Libels against another to avoid his Institution to the Church of D. which he supposes to be a Chappel of Ease belonging to his Vicarage if the Defendant suggest that D. is a Parish of it self and not a Chappel of Ease a Prohibition lies for they may not try the Bounds of a Parish 32. If a Vicar sue the Parson Impropriate for dammages for cutting down the Trees growing in the Church-yard a Prohibition lies for that if the Trees belong to him he may have Trespass at Common Law And in this case a Prohibition was granted 33. One being sued in the Ecclesiastical Court for money for reparation of the Church prayed a Prohibition and had it and after it was moved for a Consultation The case was this viz. The party that was sued prescrib'd that there is a Chappel within the same Village in which they have had at all times Sacramenta Sacramentalia and that he nor the Inhabitants of that Village which resort to the said Chappel have ever used to repair the said Church the first point in this case was whether the Prescription were good and the Chief Justice said that it is contrary to Common right that they who have a Chappel of Ease in a Village should be discharged of repairing the Mother-Church and it may be that the Church being built with Stone it may not need any Reparation within the memory of man and yet that doth not discharge them without some special cause of discharge shewed The second point was the taking away of an Objection as they said viz. That a Prescription which is incident to Ecclesiastical things shall be tried in the Ecclesiastical Court and so that Objection removed and commonly the Church-wardens are chosen in the Ecclesiastical Court yet the Lord of a Mannor may prescribe for that and then it shall not be tried in the Ecclesiastical Court although it be a Prescription of what appertains to a Spiritual thing 34. Note that in the case of Churchwardens the Chief Justice said That for the repairing the Fabrick of the Church the charge is real charges the Land and not the person but for the Ornaments of the Church it is personal and there if a man be not an Inhabitant within the Parish he is not chargeable in respect of his Land for such Tax doth charge the Goods only And to this Chamberlain Justice agreed and none denied it but where there is a Farmor of the Land there the Farmor alone shall not be charged for it is not reason that a poor Husbandman who paies Rent for his Land and perhaps to the utmost value should build Churches but it may be unknown to the Parishioner and the Churchwardens who hath the Fee in reversion and therefore they may impose the whole Tax on the Farmor and he by way of Answer may alledge in the Ecclesiastical Court that he is but the Farmor and thereupon the Tax shall be divided between him and his Landlord according to the Rate which the Land is worth more than the Rent and on the Landlord according to the quantity of the Rent quod quaere for in Jeofferie's Case 5 Coke it is Resolved That the Farmor alone is chargeable and that a Consultation was granted but not for that reason but for that the Reversioner had pleaded an insufficient plea in the Ecclesiastical Court viz. That he was not an Inhabitant within the Parish which is not a good plea as also for the great delay which he had used having made or brought two Appeals and after a Prohibition and so had put the Parish to 60 l. charge for the recovery of 6 l. and for that reason chiefly and not on the matter in Law was the Consultation granted 33. In Frances and Ley's Case it was Resolved by the Justices That Coats of Arms placed in Windows or a Monument placed in the Church or Church-yard cannot be beaten down and defaced by the Parson Ordinary Churchwardens or any other And if they be the Heir by descent interessed in the Coat
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 Churchwaâdens 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
fuerunt ideoque Praesentandi Offerendi Clericum jus habent c. Acquirunt autem hoc jus qui de Episcopi consensu vel fundant Ecclesiam vel aedificant vel ante Consecrationem dotant ut non valde sit Obscurum Jus Patronatus c. jus esse Praesentandi Clericum ad Ecclesiam Vacantem ex gratia ei Concessum qui Consentiente Episcopo vel Construxit vel dotavit Ecclesiam Corasius ibid. par 4. cap. 6. And it is gratefully provided by the Canon Law if a Patron or his Posterity being Patrons do fall to decay the Incumbent of the Fruits of the Church by Compulsary censure of the Ordinary according to that Law is to be enforced to make Contribution to them For which reason it is that the Law holds Vtilitas to be one of the three fruits or effects of a Patronage viz. Honos Onus Vtilitas 2. If two Patrons both pretending to the same Church present unto the Ordinary their Clerks respectively who insist on their Admission and the Bishop by admitting the one rejects the other he that is rejected at least his Patron may have his Action against the Bishop not in the Ecclesiastical but Temporal Court by a Quare Impedit or the like In such cases therefore the Bishop is wont to decree a Process commonly called Negotium de Jure Patronatus that is A day fixed and certain is appointed by the Bishop to sit in the Church that is void and a Monition decreed to be served on the Patrons presenting and the Clerks presented then and there to be present to see proceedings in the said business according to Law to which end a Citation issues to Twelve persons whereof six of the Clergy and six of the Laity all of the Neighbourhood of the said vacant Church to be then and there also present by way of an Enquest and on their Corporal Oaths to enquire on certain Articles then ministred to them touching the right of Presentation to the said Benefice These Articles consist chiefly of these Four heads viz. 1 Who last presented to the said Church when it was last void as also for the last two or three times when it was void 2 Whether the person or persons who last presented or these last two or three times or turns at the time and times of Vacancy of the said Church did present in his or their own proper right and title 3 Whether either of the Clerks now presented be known or suspected of any Notorious crime or of Heresie Simony Perjury Adultery or Drunkenness 4 Whether either of the Clerks now presented hath given or promised either by himself or any other for him and in his name or by or with his consent or knowledge any mony or other gratuity directly or indirectly for obtaining of his Presentation to the said Benefice to the Patron thereof or to any other who presented the said Clerk or caused him to be presented On which Articles if it be found by the Verdict of the said Jury that such or such of the said Patrons was in the possession of the Presentation at that time when the Church was last void then is his Clerk to be Admitted if there be no other legal impediment to hinder it that is nothing to affect him with contained in the third or fourth last precedent Articles 3. If two Patrons each pretending a right or title to the Presentation shall present one and the same person severally to the Bishop to be Admitted and Instituted to the Church the Bishop cannot Admit him generally but must in his Admittance of the Incumbent admit him Incumbent of the Presentation only of one of them And if they make such several Presentations claiming by several Titles the Bishop is to direct his Writ de Jure Patronatus for that in such case the Church is become Litigious yet the Bishop is not to award the said Writ but at the instance and request of the said parties And here Q. at whose charge the said Writ of Jure Patronatus shall in this case be suâd forth whether at the charge of the Bishop or of the parties for that the old Books as the Reporter gives us to understand do differ in this point Mich. 8 Jac. C. B. in Danby and Linley's Case Vid. 7 Ed. 4. Quare Imp. 100. 34 H. 6. 41. 21 H 6. 43. and 22 H. 6. 28. It is supposed and commonly practised it is sued at the instance and cost of one of the parties or of both if they joyn 35 H. 6. 18. b. 1. 9. a. 34 H. 6. 12. a. Hob. 317. 34 H. 6. 38. 5 H. 7. 22. a. 4. Suppose that a Parson be deprived by the Ordinary or reads not his Articles In which cases the Church is void yet notice must be given to the true Patron for that time or else the Lapse incurs not which is inconvenient for the Church and a prejudice to the Ordinary for how shall he in this case assure himself of a sufficient Notice For if he give notice to him that is not Patron for this very turn his Notice is vain and the true Patron perhaps knows not of the Deprivation or if he knows it needs not Present without notice given him In this Case Sir H. Hobard Chief Justice holds That his way is to award a Jure Patrânatus with solemn Premonitions Quorum Interest And then enquiry being made who is Patron to give him Notice and if he Presents not within six months then the Ordinary may Collate though that shall not bind the very Patron yet it shall excuse the Bishop from Disturbance upon Special matter shewed But if the other supposed Patron present and the six months incur Quaere if the true Patron be bound since there was no Notice given him And the Opinion of Hob. is that though without Notice the Patron is not bound by the Lapse yet that is nothing to save the Usurpation of another pretended Patron who is not subject to give Notice Also if a Suit be depending between Two parties touching the right of Presentation and it be not determined within Six months the Bishop may present by Lapse and he that hath right to Present shall recover his Dammages as by the Statute appears 5. The Patron or he that hath right to Present to a Benefice is sometimes termed Adowe alias Avowe Advocatus There is also Advowe Paramount or the highest Patron which is meant only of the King Advocatus est ad quem pertinet jus Advocationis alicujus Ecclesiae ut ad Ecclesiam Nomine proprio non alieno possit Praesentare Britton saith That Avowe is he to whom the right of Advowson of any Church appertains so that he may present thereunto in his own Name And is called Avowe for a difference from those that sometime present in another mans Name as a Guardian that presents in the name of his Ward and for a difference also from those who have the Lands to
Mannor with the Advowson appendant the Church void grants the Mannor with the Advowson 20. Of Advowsons there are three Original Writs at the Common Law 21. The Advowson of a Vicarage whether it belongs to the Patron or the Parson 22. Whether an Advowson may properly be said to be a Demesn several matters of Law in reference to Advowsons Appendant and in Gross in respect of the King and Common persons 23 Whether a Donative in the Kings Gift may be the Cure of Soul 24. Whether by the Grant of a Vicarage the Advowson of the Vicarage shall pass The grant of a next Avoydance during an Avoydance is void 1. ADvowson is a kind of Reversionary right of Presentation to an Ecclesiastical Benefice in a man and his Heirs for ever It is the same which the Canon Law understands by Jus Patronatus or the Right which a man and his Heirs have to present their Clerk to the Ordinary for a Parsonage or other Spiritual Benefice when it becomes void and he in whom such Right resides is called the Patron Jus Patronatus est Potestas Praesentandi aliquem Instituendum ad Beneficium Ecclesiae Simplex vacans Hostiens de jure Patronat Jus Patronatus est jus Honorificum Onerosum Vtile It is a Right to present to the Bishop or Ordinary a fit person by him to be Admitted and Instituted into a Spiritual Benefice when it becomes void The unlawful Possessor is the Usurper against whom only lieth three Writs one of the Right as the Writ of Right of Advowson and the other two of the Possession As a Quare Impedit and Darrein Presentment And the Incumbent as to his Right for his Rectory hath the Writ of Juris Vtrum And Advowson is not Haereditas corporata as a Messuage Land or Pasture c. But it is Haereditas Incorporata as Wayes Common Piscaries Courts c. which are and may be Appendant to Inheritances Corporate Advowson is a kind of Bastard-French word sometimes called Advocatio Ecclesiae either because the Patron thereof claiming his Jâs Patronatus therein Advocat se in his own Right unto the same eamque esse sui quasi Clientis Loco or rather because the Patron in his own right Advocat alium to the Church being vacant and presents him unto it Loco alterius veluti Defuncti Thence called sometimes Patron sometimes Advocati for they who originally obtained a Right to present to any Church were either the Founders or Builders or Benefactors of the same Decretal c. 4. 24. de jure Patronat Plow 495. Dy. 48. Co. 1. 102. 4. 37. 6. 39. Litt. 119 120. Patronum faciunt Dos Aedificatio Fundus And although Advowsons are now as other Temporal Inheritances grantable by Deed and so in that respect cognizable at the Common Law yet inasmuch as they are the same which the Canon Law calls Jus Patronatus it cannot be denied but that they are within the Ecclesiastical Jurisdiction and therefore although the Patron may have his Action against the Ordinary in a Temporal Court by a Quare Impedit for rejecting his Clerk yet the Ordinary may Decree a Process de Jure Patronatus in the case to enquire by a Mixt Jury of Ecclesiastical and Lay-men touching the said Advowson or Right of Patronage according to the Laws and Customes of the Church 2. There is an usual difference taken between Advocatio medietatis Ecclesiae and Medietas Advocationis Ecclesiae The former is where two Patrons be and every of them having Right to Present a several Incumbent to the Bishop to be Admitted into one and the same Church for divers may be several Parsons and have Cure of Souls in one Parish and such Advowson is alike in every of these Patrons but every of their Presentments is to the moity of the same Church and therefore it is called Advocatio Medietatis Ecclesiae or as the case may be Advocatio Tertiae partis Ecclesiae and the like The latter viz. Medietas Advocationis Ecclesiae is after partition between Parceners for although the Advowson be entire amongst them yet any of them being disturbed to present at his Turn shall have the Writ of Medietate or of Tertia or of Quarta parte Advocationis Ecclesiae as the Case is And this difference is taken and observed only in the Writ of Right which is altogether grounded upon the Right of Patronage But in the Quare Impedit which is only to recover Dammages no such diversity is considered but the Writ is general Praesentare ad Ecclesiam Doderidge of Advowsons Lect. 4. Of Advowsons there are two sorts The one that in Gross which is Sole or Principal not adhering or belonging to any Mannor or to any part or parcel thereof as of the Right thereof The other Appendant or Dependant or depending on a Mannor as appertaining or belonging thereto which is by Kitchin termed an Incident that may be separated from the Subject Again Sometimes the word Advowé or Avowé is also used for him who hath a Right in his own Name to present to a Benefice or other Ecclesiastical Living where you have also Advowe paramount or the highest Patron an Appellation peculiar to the King So that this Advocatus is he to whom such jus advocationis alicujus Ecclesiae belongeth as that he may Present to the Church in his own but not in anothers Name And Fitzherbert useth it in the same signification 3. Consonant to the practice at this day touching Advowsons was the Emperour's Novell Decreed about 1100 years since towards the end of the Fifth Century to this purpose That if any man shall erect an Oratory and his desire be to Present a Clerk thereunto by himself or his Heirs if they furnish the Clerk with a Competency and Nominate to the Bishop such as are worthy they may be Ordained But if those who are intimated by them be rejected by the Canons as unworthy of the Ministry then let it be the care of the most Reverend Diocesan of the place to Present such as in his discretion he shall conceive better of And Panormitan clearly interprets the Emperour's mind herein and gives us the very meaning and original of the Patron 's Right in this point of Advowsons he says That this is Jus honorificum onerosum utile belonging to any in the Church for that with the Diocesans consent he hath Founded Built and Endowed a Church he hath given a piece of Ground C. nobis c. de jur Patronat and erected a Church thereon 16. q. 7. c. Monasterium and Endowed it C. Piae mentis ibid. and was therefore qualified with the Right of Patronage And indeed the Diocesans consent herein is so requisite that by the Canon Law it seems scarce feazable for a man to be a Patron without it Si quis Ecclesiam cum assensu Dioecesani construxit ex eo Jus Patronatus acquirit Clement c. Nobis de Jur. Patron And when a
in strictness of Law by the words cum pertinentiis yet it shall be intended in respect of the Ancient and continued possession that there was a lawful Grant of the King to H. B. c. and all shall be presumed to be done which might make the Ancient Appropriation good And the Reason thereof there given is for that if the Appropriation had been drawn in question in the Life-time of any of the Parties to it they might have shewed the truth of the matter But after so many Successions of Ages in which the Church was esteemed to be rightfully Appropriated the Appropriation shall not now be drawn in question For the same reason a Procedendo was refused to be granted in Chancery in the Case of the Lord St. John of Bletso and the Dean and Chapter of Gloucester the Court then giving for Reason because the Defendant and those from whom he claimed time out of mind had had the possession of a Parsonage as Impropriate saving for some short time and because it shall be a dangerous President for Owners of Impropriations to maintain the Appropriations to be Perfect in all points and circumstances requisite to an Absolute Appropriation the Appropriations being made of Ancient time The like Resolution was given by the Court in Hunston and Cockett's Case viz. That whether an Appropriation be good or not cannot now be called into question but shall be intended to be good and to all requisite Circumstances 7. An Appropriation cannot in any case be made by the Patron himself only yet where the King is Patron it may be made by him Sole And although upon every Appropriation there ought to be an Endowment of a Vicar yet a Vicarage it self Endowed may as hath been held by the whole Court be Appropriated but not to the Parson and as in the Book 21 H. 6. is such a Vicarage as may afterwards be dissolved And if a Lease be made of a Parsonage Impropriate by one who hath not any thing therein during the life of the Incumbent it will be void nor can an Appropriation be made to a Church which is Full of an Incumbent but by Special words It hath also been held That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope had not any power to make any Ordinance against that Statute by which he hath not any Right to meddle with Advowsons Benefices c. and that by his Bulls he cannot dispence with the Law though they tend in ordine ad Spiritualia 8. Touching Appropriations there were Three considerable Points in Law Resolved by the Justices in Grendon's Case 1 That none is capable of Appropriation but a Body Corporate or Politick Spiritual which hath a Succession For that the effect of an Appropriation as to the first Institution thereof was to make the Body Politick perpetual Incumbent and to have the Rectory and that he hath the Cure of all the Souls of the Parishioners and therefore he must be a Spiritual person 2 That the King Ordinary and Patron ought to be assenting unto every Appropriation and that the Authority which the Pope had usurped in this Realm was by Parliament An. 25 H. 8 acknowledged to be in the King and the King being Supream Ordinary might of his own Authority and Jurisdiction make an Appropriation without the Assent of the Bishop 3 That an Appropriation may be made by Apt words when the Church is Full as to say That the Parson who is a Spiritual person after that the Church shall be void shall be Parson and may retain the Glebe and the Fruits of the Church to his proper use and that the same shall be a good Appropriation when the Church shall be void by death or otherwise 9. It is brought by way of Report to us That it was the Opinion of the Master of the Rolls in the great Case of Consultation which was argued in the Exchequer Chamber the 18 H. 6. 21. a. That an Advowson could not be Appropriate without a Succession although that the Incumbent purchased the Advowson by License to hold to his Own use Where it was further said That if a Prior were seized of an Advowson to him and his Heirs and he purchase License of Appropriation and that he and his Successors might hold the Advowson to their own use yet the Advowson shall descend to his Heirs But in such case if he would have the Appropriation to be good it were best to alien the Advowson and after to re-purchase it to him and his Successors and then the Appropriation will be good All Appropriations have been usually to Corporations or persons Spiritual and not to Bodies Politick consisting of meer Lay-men or Lay-Corporations And in Alden and Tothil's Case it was in question Whether the King since the Statute of 25 H. 8. might by his Letters Patents Appropriate a Church Parochial which was before Presentative unto a Lay-Corporation all the Members of the Corporation being meer Lay-men which Case was not then Resolved 10. As a Church Parochial might be Appropriated so a Church which is Appropriated to a Spiritual Corporation may become disappropriate if the Corporation be-dissolved Also if the Advowson of a Church were by License granted to a Prior and his Successors and afterwards the same Church were Appropriated to him and his Successors so as thereby they became perpetual Parsons Imparsonees In that Case if the Wife of a Grantor were endowed of the Advowson and Presented a Clerk who was Admitted Instituted and Inducted the Appropriation would be defeated for ever for the whole Estate of the Parson Imparsonee is thereby avoided And so it was Adjudged 2 E. 3. 8. sed Quaere For in the Case of Lancaster and Lucas it was held by the Court That in such Case the Church was Disappropriated but during the life of the Wife and after her death it should remain as Appropriated 11. Sir H. Hobart Chief Justice in the Case of Colt and Glover against the Bishop of Coventry and Lichfield says That the proper and operative word that doth Appropriate is to make the Patron and his Successors Perpetual Parsons and in the Case of Wright against Gilbert Gerrard and Richard Hildersham That the Instrument of Appropriation runs in these words That they and their Successors not their Assigns shall be Parsons or by Periphrasis hold the Church in proper use and the words of Appropriating are that they may hold Ecclesiam Rectoriam in proprios usus as in Grindon's Case and says further that Appropriations cannot endure longer than the Bodies whereunto they were first Appropriate because it carries not only the Glebe and Tithes but doth also give the Spiritual Function makes the Parsons of the Church and supplies Institution and Induction 12. A Prior was seized of the Advowson of a Parsonage the Church being void the Bishop gave him License to hold
it to his proper use and there was not any Endowment of the Vicarage The Jury found the Statute of 4 H. 4. of Appropriations and of 27 H. 8. which gives Priories c. to the King Whether the Appropriation were good there being no Endowment of the Vicarage And whether the Appropriation without the King's License was good was the Question Resolved That whether the Appropriation be good or not cannot now be called in question but it shall be intended to be good and have all requisite Circumstances But in this Case because the Defendant claimeth per Praesentationem Regis ratione Lapsus Whereas the King if he had any Title to Present it was Jure Coronae the Presentment of the Plaintiff was utterly void and the Plaintiff had no Title who brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes CHAP. XXI Of Commendams 1. What a Commendam is or the Legal description thereof 2. The King may dispence with the holding of divers Benefices in Commendam notwithstanding the Canon of the Lateran Council against Pluralities 3. Three Degrees of Commendams by the Canon Law 4. A description of a Semestral and Temporary Commendatory 5. The provision the Pope made in granting Commendams certain Benefices in the Church of Rome never given in Commendams 6. What the Canon Law in Commendams ad Tempus or Perpetuo 7. The grand Case of a Commendam at the Common Law between Kiffin and Ascough and therein great variety of Learning touching that Subject 8. Several Considerations in Law touching Commendams 9. An Irish Case with great variety of Learning in reference to this Subject 1. COmmendam Ecclesia Commendata is a Benefice or Ecclesiastical Living which being void is commended to the charge and care of some sufficient Clerk to be supplied until it may be conveniently provided of a Pastor And this was the Original of what we now commonly call Commendams Durand de Benefic lib. 5. cap. 7. That person to whom the Church is thus Commended hath the Fruits and Profits thereof only for a certain time whereby the nature of the Church is not changed but is as a thing deposited in his hands as it were in Trust being concredited only with the care and custody thereof which may be revoked Thus when a Parson of a Parish is made the Bishop of a Diocess there is a Cession of his Benefice by the Promotion but if the King gives him power to retain his Benefice he shall continue Parson thereof and shall be said to hold it in Commendam So that it may properly be thus defined Commenda est Ecclesiae Custodia alicui Commissa in tempus gratia evidentis necessitatis utilitatis Gloss in verb. Commendare c. Nemo deinceps de Elect. in lib. 6. Andr. in dict Gloss For hereby the Bishop commits the care and custody of a Vacant Church to some one whom he Constitutes as a general Administrator thereof Corras de Sacerd. mater p. 1. c. 6. nu 3. dict c. Nemo for Commendare in this sense is no other than Deponere l. Publius ff Depositi l. Commendare ff de verb. Sign And he to whom the same is so committed is in the Law termed Commendatarius having the custody of a Vacant Church and the Fruits thereof only for a time and the Beneficium Commendatum we call Commendam Petrus Gregorius makes this Commendam of a Church to be on a double account viz. either in utilitatem Ecclesiae or Commendatarii In the former case he says the Commenda gives no Title to the Commendatary of the Benefice but is only a Custody or Trust which may be revoked and consequently repugnant to the nature of a Benefice which is Perpetual In the other Case the Benefice is held to be a Commenda made in utilitatem Commendatarii which he may hold and possess as long as he lives Petr. Greg. de Benef. cap. 10. nu 13. 2. By a Canon of the Lateran Council no person Ecclesiastical could hold Two Benefices with Cure of Souls simul semel but by the taking of a Second the former would be void Cons Later F. N. B. 34. L. Co. par 4. 75. Lindw Consil Provin de Praebend cap. Audistis yet might the King it seems by the Common Law notwithstanding that Canon grant Dispensations to hold divers Benefices in Commendam as at this day he may notwithstanding the Stat. of 21 H. 8. For the Statute of 25 H. 8. that takes away the Popes usurped power of granting Commendams c. in this Realm doth vest it in the Crown de jure as also doth the Statute of 1 Eliz. and from and under the Crown in the Archbishop of Canterbury his Commissaries c. And as heretofore the Pope did by Usurpation in this Realm so now de jure ex Regali Authoritate may the King grant unto a Consecrated Bishop a Dispensation Recipere obtinere Beneficium cum Cura animarum and to hold the same in Commendam 3. In the Case of Colt and Glover against the Bishop of Coventry and Lichfield according to Sir Hen. Hobart Lord Chief Justice out of the Canons Commendams are said to be of Three Degrees one Semestris another Perpetua vel ad vitam a third Intermedia or Diuturna sed Limitata and sometimes called Temporaria or Temporalis vel ad certum Temporis spatium Limitata Clem. v. Extra l. 3. de Praebendis c. 2. The Commenda Semestris did arise out of natural equity that in the time of the Patrons respite given him to Present the Church should not be without a Provisional Pastor which was a Law of Necessity agreeable to the Law of Nature But after the Lapse justly incurred the Commendam is to cease or then the Ordinary may Collate The Commenda Perpetua vel ad vitam is that which cannot be for a less time than for the life of the Commendatary absolute And the Commenda Intermedia diuturna or Temporalis vel ad certum temporis spatium Limitata is when a Commenda is to a person not for his life absolutely but so long as he shall be Bishop of such a place or the like Each of which Degrees of Commendams doth refer to the Commendam obtinere capere apprehendere A Dispensation Commendam recipere which shall make a Title ought to have three Incidents 1 It ought to be Recipere convertere in usus proprios 2 It ought to be ad utilitatem Ecclesiae vel Parsonae 3 It ought to have the Assent of the Patron And he that is but mere Commendatarius is Accountable to the Ordinary Vid. Case Evans and Ascough in Latch Rep. And not to the Commendam retinere which in truth is no Commendam though commonly so called but is only a Faculty of Retention and Continuation of the Benefice in the same person and state wherein it was notwithstanding something intervening as a Bishoprick or the
placuit 10. q. 3. Rebuff de Commenda who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati sumere ex eo alimenta debita persolvere sicut is qui titulum habet c. 1. de Solutio hoc afferit Archidiac in cap. qui plures 21. q. 1. 7. The grand Case of a Commendam was that of Evans and Kiffin against Ascuth which being two daies argued by the Judges and by Noy Attorney is acutely and succinctly Reported thus viz. In Trespass Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland But before Consecration or Confirmation he obtained a Patent with large words Non obstante retinere valeat in Commendam the said Deanary c. And afterwards he was chosen Bishop of Bristol and then also before Installation he obtained another Patent with a more ample Dispensation of retaining the Deanary in Commendam It was Agreed by all That the Church or Deanary c. in England shall be void by Cession if the Parson or Dean c. be made a Bishop in Ireland For the Canon Law in that is one through all the World Also Ireland is governed by the Laws of England and is now as part of England by Subordinacy Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Case Confirmation under the Great Seal of England of Presentation to a Church in Ireland of the Heir of the Tenant of the King and that a Dispensation under the Great Seal of England is good in this Case without any Patent of it in Ireland vid. 8 Ass 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good Note 20 H. 6. 8 Scir fac sued in England to Repeal a Patent under the Great Seal of Ireland vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England Note Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King under the Great Seal of England yet the King may let them be chosen per Congé d'Eslire c. 1 Noy Attorney Argued at Bar and so stated the Points of the said Case by themselves If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop for it is Agreed That a Commendatary Dean by Recipere in Commend cannot Confirm because he is but a Depositarius Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name and by such a Commend he may take the profits and use Jurisdiction and yet is not a Dean compleat Note he may make a Deputy for Visitation but not for Confirmation of Leases Note if there be two Deans in one Church both ought to Confirm Vid. Dy. 282. Co. Inst 30. a. 2 The Second point if such a Bishop be chosen to another Bishoprick if now the first Church in Commend admitting that there was a Full Incumbent be void presently by the Election and assent of the Superiour viz. the King And it seemed to him that it was because there need not be a new Consecration and he vouch'd Panormitan 2. par 101. The Bishop of Spires was chosen Bishop of Trevers and had the assent of the Pope and that he came to Trevers and there found another in possession and he would have returned to the former Bishoprick and could not He also Cited 8 Rep. Trollop's Case That the Guardianship of the Temporalties cease by the Election of a new Bishop Note that Serjeant Henden who argued on the contrary vouch'd Mich. 4 Jac. May Bishop of Carlisle made a Lease to the Queen and a Commission issued out of the Exchequer to take it and the Dean and Chapter Confirmed it before the Inrolment of it and yet Adjudged good That Case was for the Castle of Horne First the Judges having Argued two daies Resolved 1 That all Commendams are Dispensations and that Cession commenced by the Canon and Council of Lateran 2 That the King may dispense with that Canon 11 H. 7. 12. For the Pope might and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris and not by Introduction novi Juris and by that Statute a concurrent power is given to the Archbishop of Canterbury and may be granted to the King or by the Archbishop c. 3 That the Dispensation after Election to the first Bishoprick and before Consecration c. and also the Dispensation after Election to the second Bishoprick and before Confirmation is good enough in both Cases and he remains a good Dean to Confirm c. and afterwards the Judgment in the Case being an Action of Trespass was given accordingly 8. A Commendam is to be granted Necessitate evidenti vel utilitate Ecclesiae suadente and in the Infancy of the Church quando defuerunt Pastores they were necessary A Commendam ordinarily is but for six months and he that hath it is Custos only the other is extraordinary and that is for life and he is an Incumbent The King by his Prerogative Royal may grant a Commendam without any Statute yet if such Commendam shall be good it may be very mischievous to the Patron It is it seems agreed in the Books of the Common Law that the use of Commendams in their first Institution was lawful but not the abuse thereof and that a perpetual Commendam viz. for life was held unlawful and condemned by a Council of 700 Bishops It is likewise Reported to us That where the Incumbent of a Church was created a Bishop and the Queen granted him to hold the Benefice which he had in Commendam It was the Opinion of the Justices That the Queen had the Prerogative by the Common Law and that it is not taken away by the Stat. of 35 H. 8. 9. In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale on a Special plea pleaded by Wale the Incumbent the Kings Attorney demurred in Law The Case in substance was this viz. the Corporation of Kilkenny being Patrons of a Vicarage within the Diocess of Ossery Presented one Patrick Fynne thereunto who was Admitted Instituted and Inducted After that during the Incumbency of the said Fynne Adam Loftus Archbishop of Dublin and Ambrose Forth Doctor of the Civil Law being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall then Bishop of Ossery That the said Bishop unum vel plura Beneficia curata vel non curata sui vel alieni Jurispatronatus non excedentia annuum valorem quadraginta Librarum adtunc vacantia vel quae per imposterum vacare contigerint perpetuae Commendae titulo adipisci occupare retinere omnesque fructus
ad Familiae suae sustentationem convertere possit juribus sive institutis quibuscunque in contrarium non obstantibus Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland according to the Statute of 28 H. 8. c. 16. After this viz. 20 May An. 38 Eliz. Patrick Fynne the Incumbent died whereby the said Vicarage being void and so continuing void by the space of Six months whereby the Bishop had power to Collate thereunto by Lapse the said Bishop by virtue of the said Faculty or Dispensation adeptus est occupavit retinuit the said Vicarage perpetuae Commendae titulo and took the Fruits thereof to his own use until the 13 Febr. An. 1609. on which day the Bishop died After whose death the said Cyprian Horsefall having purchased the next Avoidance of that Vicarage Presented the said Wale who was Admitted Instituted and Inducted And afterwards the King Presents one Winch who being disturbed by the said Horsefall and Wale the King brought a Quare Impedit Whether the said Bishop when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation were thereby made compleat Incumbent thereof so as the Church being full of him no Title by Lapse could devolve to the King during the life of the Bishop was the Principal point moved and debated in this Case And in the Argument of this point which was argued at the Bar first by the Counsel at Common Law and then by two Advocates well versed in the Canon Law and at the Bench by all the Justices Two things were chiefly considered by those who argued for the Kings Clerk 1 Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty 2 What effect or operation that Faculty or Dispensation shall have by the Law As to the First they held clearly for Law That a Bishop by the Ancient Ecclesiastical Law of England may not hold another Benefice with Cure in his own Diocess and if he hath such Benefice before his promotion to the Bishoprick that it becomes void when he is created a Bishop And this is the Ancient Law of England as is often said in the Bishop of St. David's Case 11 H. 4. 41 Ed. 3. 5. b. agrees therewith The Reason is for that the Bishop cannot visit himself and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9. That if a Parson be made a Dean the Parsonage becomes void for that the Dignity and the Benefice are not compatible So no Ecclesiastical person by the Ancient Canons and Councils could have Two Benefices with Cure simul semel but the first would be void by taking asecond And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 8. cap. 13. which was made in Affirmance of the Ancient Law as appears in Holland's Case Co. par 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. N. Br. 34. l. And the Text of the Canon Law which is the proper Fountain of this Learning proves it fully Decretal de Praeben Dignit c. de multa Where it is said De multa providentia fuit in Lateranensi Concilio prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum instituta c. Praesenti Decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale Beneficium habebat eo sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. And with this agrees the Text in Decret Caus 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest So that it is evident that the Bishop could not by any Law have or retain that Benefice within his Diocess without a Dispensation which is Relaxatio Juris and permits that to be done which the Law had before prohibited It is to be observed That Commenda est quaedam provisio and therefore Gomez in Reg. de Idiomate saith That Commendare est Providere quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus And by the Canon Law the Consent of the Patron is requisite where a Benefice is given in Commendam Lib. 6. Decretal c. Nemo where the Gloss saith Ad Commendam vacabitur Patronus si qui alii ex tali Commenda laeduntur Also in Constit Othob de Commendis it is said expresly That Consensus Patroni ad Commendam requiritur The Canon Law holds these Commendams as very prejudicial and that in divers respects and therefore says That Experientia docet occasione Commendarum cultum Divinum minui Curam animarum negligi hospitalitatem Consuetam debitam non servari ruinis aedificia supponi c. 6. Extra cap Pastoris And whereas it is said of a Bishop That he is to be unius uxoris vir the Canonists expound it That he shall have but one Bishoprick or only one Cure for they say that per Commondam Bigamia contrahitur in Ecclesia Therefore it was well Resolved by that good and pious Bishop who when another Benefice was offered him to hold in Commendam said Absit ut cum Sponsa habeam Concubinam But for the clearer understanding of the nature and difference of these Commendams it is further to be considered That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius and therefore Decret caus 21. q. 1. Qui plures the Gloss there saith Commendare nihil aliud est quam deponere This Commenda or Commendatio Ecclesiae is divers according to the nature of the Church and the Limitation or Continuance of the Commenda for a Commenda may be of a Church either Curatae or non Curatae and it may be either Temporanea viz. for a time certain as for Six months or Perpetua viz. during the life of the Commendatary A Church with Cure may not be given in Commendam unless upon evident necessity or the benefit of the Church viz. to supply the Cure till provision be made of a sufficient Incumbent And therefore by the Council of Lions it was provided That a Parochial Church should not be given in Commendam nisi ex evidenti necessitate vel utilitate Ecclesiae quod talis Commenda ultra semestris temporis spatium non duraret quod secus factum fuerit sit irritum ipso jure c. 6. Decretal c. Nemo But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary vel ad mensam In that sense the Canonists say That Commenda is quasi comedenda quia Ecclesiae quae
of Six months By the Common Law of England as well Clerks as Laicks have Six months to Present before the Lapse incurr Dr. Stu. 116. b. Per la Com. Ley De Scoce Laici Patroni quadrimestre Ecclesiastici vero Sex mensium spatium habent sibi concessum ad Praesentandum personam idoneam Ecclesiae vacanti Skene Regiam Majestatem 10. b. But Jac. 6. pl. 1. cap. 7. Pl. 7. cap. 102. pl. 12. cap. 119 158. Concedit Patrono Laico spatium Sex mensium infra quod Praesentare debet The Question is not so much when the Term shall end and determine as when it shall commence and from what time the Six months shall be computed The Answer falls under a double consideration or is diversified according to the divers manners of Avoidances for if by Death Creation or Cession the Church be void then the Six months shall be computed from the Death Creation or Cession of the last Incumbent whereof the Patron is to take Notice at his peril But if the Avoidance be by Resignation or Deprivation then the Six months shall begin from the time of Notice thereof given by the Bishop to the Patron who is not obliged to take knowledge thereof from any other than by signification from the Bishop But in case the Avoidance were caused by an Union for so it might be then the Six months should be computed from the time of the Agreement upon that Union for in that case the Patron was not ignorant of but privy to the Avoidance for there could be no Union made but the Patron must have the knowledge thereof and then it was to be appointed who should Present after the Union as whether one or both either joyntly or by turns one after another as the Agreement was upon the Union 3. The Continuance of a Voidance of a Church by the several Lapses of Patron Bishop and Archbishops derives the Title of Presentation at last to the King as Patron paramount of all the Churches in England and wherever the Original Patron by Law ought to take notice of a Voidance at his peril there and in such case by a Non-Presentation within Six months from the time of such Voidance the Lapse will ever incurr And generally by the Admission Institution and Induction to a Second Benefice Prima Ecclesia vacat de persona of the Incumbent vacans continuat till new Induction But when an Archbishop Bishop or other Ordinary hath given a Benefice of right devolute unto him by Lapse of time and after the King Presenteth and taketh his Suit against the Patron who possibly will suffer that the King shall recover without Action tried in deceipt of the Ordinary or the possessor of the said Benefice In such and all other like cases where the Kings Right is not tried the Archbishop Bishop Ordinary or Possessor shall be received to counterplead the Title taken for the King and to have his Answer and to shew and defend his Right upon the matter although that he claim nothing in the Patronage so that the Ordinary may Counterplead the Kings Title for a Benefice fallen to him by Lapse Also when the King doth make Collation or Presentment to a Benefice in anothers Right the Title whereupon he groundeth himself may be well examined that it be true which if before Judgment it be by good information found to be otherwise the Collation or Presentment thereof made may be Repealed whereupon the true Patron or Possessor may have as many Writs out of Chancery as shall be needful There are some Statutes the King not being bound by Lapse of Time for nullum Tempus occurrit Regi which are good remedies and reliefs for the Ordinary that hath Collated by Lapse as also for the Clerk that is Collated for otherwise a Common person might by Practice have turned out a lawful Collatee to which purpose the Lord Hobart doth instance in a Case A Common person no true Patron Presents within Six months and the true Patron himself Presents not in time whereupon the Ordinary Collates by the Lapse against whom the Pretender brings a Quare Impedit because his Clerk was refused wherein he must needs prevail if his Title be good and it must be taken for good because neither Ordinary nor Incumbent could deny it for de non apparentibus de non existentibus eadem est ratio which Inconvenience is remedied by the said Stat. of 25 E. 3. c. 7. Note that Lapse doth not incurr to the Ordinary by reason of his not examining the Clerk within Six months Trin. 3 Jac. B. R. inter Palmer Smith Resolved per Cur. 4. If a Plea be depending between Two parties and it be not discussed and determined within Six months the Bishop may Present by Lapse and he that hath the Right to Present shall according to the Statute recover his Dammages But it is expresly provided by the Statute of 13 Eliz. 12. That no Title to Collate or Present by a Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron But if the Church become void by Death Creation or Cession of the last Incumbent the Patron is at his peril to take Notice of such Avoidances within the next Six months thereof But if it become void by Deprivation or Resignation the Clerk is not obliged to tender his Presentation to the Bishop nor the Patron obliged to Present his Clerk but within Six months next after Notice legally given him by the Ordinary of the Avoidance by such Deprivation or Resignation which Six months are to be calculated or computed by 182 days and not by 28 days to the Month Nor is there any Addition of time over and above the Six months allowed the Patron to Present from the Vacancy a Second Clerk in case the former were legally refused by the Bishop Yet the Ordinary may not take advantage of the Lapse in case the Patron Present his Clerk before the other hath Collated though it be otherwise with the Canonists Lindw c. Si aliquo evincente c. verb. Injuria But if the Bishop Collate and the Patron Present before Induction in that case it seems he comes too late And at the Common Law Sir Simon Degge in his Parsons Counsellor makes it a doubtful Question if the Church Lapse to the King and the Patron Presents before the King take advantage of the Lapse whether this shall avoid the Kings Title by Lapse This says he is a Question by Dyer though Hobart seems to be clear in it that the King shall not have the benefit of the Lapse but adds that divers Authorities are against them And in the Cases aforesaid wherein Notice of Avoidance ought to be given to the Patron before the Lapse can incurr the Patron is not obliged to take Notice thereof from any person other
is Created Bishop and dies Incumbent it seems the King shall not Present to the Church by his Prerogative for that the Church is not void by his being made a Bishop in which case the Prerogative gives the Presentation to the King but by the death of the Incumbent in which case the Prerogative doth not take place Co. Ent. 474. Hele's Case there pleaded that in such case the Church is void by death and admitted that it belongs to the Patron to present upon his death 24. If a Church whereof a Bishop in right of his Bishoprick is the Patron becomes void after the death of the Bishop and before the Seizure of the Temporalties yet the King shall have the Presentation And if a Church belonging to the Patronage of a Bishop become void and the Bishop Present and die before Institution the King shall have that Presentation by his Prerogative So if a Bishop die after Institution of the Clerk and before Induction the King shall have the Presentation by his Prerogative Also if Lapse incurr to the Ordinary and before the Six months pass the Ordinary is Translated or dies it seems the King shall have the Presentation and not the Ordinary or his Executors or the Guardian of the Spiritualties P. 40 El. B. Dubitatur Hob. Rep. 208. in case of death But if a Bishop having right to present to a Prebend and present his Clerk who is Instituted and Inducted in the Morning and Afternoon the same day the Bishop dies whereby the Temporalties come into the Kings hands yet the King in that case may not have the Presentation 25. The Patronage of the Deanary of an Archbishoprick doth of Common right belong to the Archbishop and he shall Present to the Avoidance But by Composition it may be Elective by the Chapter and yet the Patronage remain in the Archbishop And where a Parson ought to present to a Vicarage if the Vicarage become void during the vacancy of the Parsonage the Patron of the Parsonage shall present 26. An Alien who is a Minister may be presented to a Church and Anciently it was usual for Aliens to have Spiritual promotions here and Priors Aliens had great possessions in England and were Parsons Appropriate yet by the Statutes of 13 R. 2. 1 H. 5. French-men are disabled from having Benefices in England and French-men Denizon'd Sed Qu. whether they continue of force at this day And if a meer Lay-man or a man altogether illiterate be presented Instituted and Inducted it is not in Construction of the Common Law a meer Nullity but such are Parsons de facto but if a Woman be Presented Instituted and Inducted it is a meer Nullity at that Law because her Incapacity is apparent 27. If a man present his Clerk to the Bishop and he die before he is received he may present another and although a man hath presented his Clerk to the Bishop yet he may present another at any time before the Bishop shall have received such his Clerk 28. If J. S. Present and his Clerk be Admitted and Instituted before Induction J. D. cannot Present his Clerk for the Church was Full before as to a Common person for by the Institution he had Curam animarum But where a Common person Presents and his Clerk be Admitted and Instituted yet before Induction the King if he hath Right may Present and his Clerk shall be Instituted for the Church is not Full as against the King before Induction But if the King hath not right to the Church in that case the Church is Full by the Admission and Institution of a Common person's Clerk without Induction as against the King so as that he may not in that case Present 29. If a Bishop Collate without any good Title of Lapse or otherwise and then the Patron die after the Six months claps'd and his Executor bring Quare Impedit by force of the Statute of 4 E. 3. and the Bishop and Incumbent plead Plenarty by Six months it was Adjudged no Plea on Demurrer for that the Collation is not any Plenarty being Tortious Also if a Bishop Collate without a good Title of Lapse it puts not the Patron out of possession but he may Present afterwards albeit the Bishop's Clerk were Instituted and Inducted 30. A Common person may Present to a Church per Parol and if it be by Writing yet it is not any Deed but only in nature of a Letter to the Bishop Also the King may Present either by his Letters or per Parol without Writing But if the King be deceived in his Title it will be a void Presentation And if the King grant a Presentation by his Letters by the words damus Concedimus without other words of Presentation yet it seems it shall amount to a Presentation and be a sufficient Warrant for the Bishop to Institute him Dubitatur 19 E. 3. Quare Impedit 60. A Common person by his Letter or his Word may make a Presentation to a Benefice to the Bishop the King may Present by Word if the Ordinary be present if the King under any Seal present it is good And Mich. 10 Jac. it was held by the whole Court that a Presentment under the Great Seal to a Church parcel of the Dutchy of Lancaster is good and needed not to be under the Dutchy-Seal Where a man accepts a Second Benefice with Cure without a Dispensation or Qualification the First Benefice is void and the Patron may Present but if he doth not Present then if it is under value no Lapse shall incurr until there is a Deprivation and Notice But if it be above value then the Patron must Present within Six months The King seized of an Advowson in the Right of his Dutchy of Lancaster Presented to it under the Great Seal and not under the Seal of the Dutchy And Resolved That the Presentation was good for the Presentation is but a Fruit fallen from the Tree and the King may Present by word because a Presentation is but a Commendation of the Clerk to the Ordinary A man seized of an Advowson in Fee granted to another and his Heirs that when the Church should become void that the Grantee and his Heirs should Nominate a Clerk to the Grantor and his Heirs and he and his Heirs should Present him to the Ordinary Resolved That if he who hath the Nomination Present he which ought to Present shall have a Quare Impedit against him and è contra In Beverley and Cornwell's Case it was Resolved That if any Advowson comes to the Queen for Forfeiture by Outlawry and the Church becomes void and the Queen Presents and then the Outlawry is reversed for Error yet the Queen shall enjoy the Presentment because it came to the Queen as a profit of the Advowson but if the Church be void at the time of the Outlawry and the
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 inâerted 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
as in case of Single Corporations Bishops Deans and Parsons which must die and leave a Vacuum of the Freehold And this Next Avoidance is a Chattel locally where the Advowson is not where the Deed is for it was Resolved in the Case of Holland vers Shelley That the Advowson had such a Locality in the Rape where the Church was that it accrued to the Plaintiff wheresoever the Deed of Grant or the Grantee himself was 4. C. brought a Quare Impedit against the Archbishop of Canterbury and others and Declared upon a Grant of the Next Avoidance and the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written by his Father to the true Patron by which he had Writ to his Father that he had given to his Son that was the Plaintiff the next Avoidance and upon this there was a Demurr And the whole Court for the Demurr For that such Letter was a Mockery for the Grant was not good without Deed and Judgment was given accordingly But by Deed it is Grantable whereby Advowsons are also Grantable as other Inheritances are and the delivery of the Deed of Grant of it shall be instead of Livery made of the Church it self according to Sir Edward Coke in the first Part of his Institutes 5. If a Tenant in tail and his Son joyn in a Grant of the Next Avoidance it is void against the Son and no Confirmation for in the case of a Quare Impedit brought by Sir Marmaduke Wivel the Point was this Tenant in tail of an Advowson and his Son and Heir joyned in a Grant of the Next Avoidance The Tenant in tail died and it was Adjudged that the Grant was utterly void against the Son and heir that joyned in the Grant because he had nothing in the Advowson neither in possession or right nor in Actual possibility at the time of the Grant 6. The Acceptance of an Archdeaconry by one who hath a Benefice with Cure of Souls may work an Avoidance at the Canon Law as to such Archdeaconry yet an Archdeaconry and the Promotion thereof as being not any Cure of Souls though an Ecclesiastical Preferment seems not to be within the Statute of 21 H. 8. 13. And the Opinion of Wray Chief Justice in Vnderhill's Case upon that Statute was that he conceived the Law there to be qualified in that case by reason of a Proviso in the said Statute 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 7. In a Quare Impedit the Case was The Plaintiff counted that R. B. was seized of an Advowson and granted the Next Avoidance to the Plaintiff and H. B. and that afterwards the Church became void and after during the Avoidance H. B. released to the Plaintiff and so that it belongs to him to Present Upon this Count the Defendant did demurr in Law for it appeareth upon the Plaintiffs own shewing that H. B. ought to have joyned with the Plaintiff in the Action for the Release being made after the Church became void is not of any effect but utterly void So is the Grant of the Presentment to the Church where the Church is void for it is a thing in Action Vid. the Lord Dyer 28 H. 6. 26. 3 M. Dyer 129. 11 Eliz. Dyer 283. And afterwards Judgment was given that the Release was void 8. Touching Avoidances there is a wide difference between the Judgment of the Common Law and that of the Canon for if a meer Lay-man not having holy Orders be Presented to a Benefice the Church remains void according to the Canon Law notwithstanding such Presentation but at the Common Law albeit this be a meer nullity there also and void yet it doth adjudge the Church to be Full according to the publick Admission Institution and Induction and not according to the capacity of the person which is a thing secret until such an one be deprived for it by Sentence in the Spiritual Court and so the Church in construction of Law understand it of the Common Law is held void but from the time of Deprivation of which notice ought to be given to the Patron So that according to the Canon Law there cannot be a Plenarty by the Presentation Admission Institution and Induction of a meer Lay-man to a Church it is otherwise at the Common Law which doth not so much consider the Capacity or Incapacity of the person Instituted and Inducted as the Institution and Induction it self until such time as there is a Sentence of Deprivation in the Ecclesiastical Court 9. Cession is when an Ecclesiastical person Beneficed is Created a Bishop or when the Parson of a Parsonage taketh another Benefice without Dispensation not being otherwise qualified for Plurality In both which cases their first Benefices become void and are said to be so void by Cession insomuch that the King shall Present pro hac vice whoever be Patron to that Benefice which he had who was Created Bishop and in the other Case the Patron may Present So that if a Parson or Dean in England take and accept of a Bishoprick in Ireland it will cause that the First Church shall become void by Cession Resolved in Holland's Case and in Digby's Case 4. Rep. That the Patron may Present as soon as the Incumbent is Instituted in a Second Living without Deprivation 10. By the Council of Lateran it was Ordained That whoever having a Benefice with Cure of Souls should accept of another cum Cura should ipso jure be deprived of the former the Patron whereof might Present as to a Benefice void and this without any Sentence Declaratory of the First Church being void if there were no License or Dispensation to the contrary in the case to prevent a Cession of the former Benefice For it hath been Resolved That the Acceptance of a Second Benefice voids the former by Cession without any Sentence Declaratory by the Statute of 21 H. 8. 13. but if having a Benefice cum Cura he Accept of an Archdeaconry the same is not such a Benefice with Cure of Souls within the said Statute as to make the former void as was then also Resolved 11. In case of Cession in this kind it is requisite that Notice thereof be given by the Ordinary to the Patron otherwise the Lapse will not incurr against him in case he Present not within the Six months Nor do the Courts at Common Law take notice of such Cession until the same be certified unto them by the Ordinary And wherever an Ecclesiastical Dignity and a Benefice with Cure are Incompatible there the Acceptance of the one will be a Cession of the other For which reason if the Incumbent of a Parsonage or Vicarage with Cure be made Dean of a Cathedral his Parsonage or Vicarage becomes void by Cession
unless he be qualified for Plurality Or if a Dean be made a Bishop yea though a Dean or Parson in England be made a Bishop in Ireland as aforesaid his Benefice becomes void as was Resolved in Evans and Askwith's Case for that the Constitution or Council which makes it void is general and not limited to any place And so it was also Resolved 3 E. 3. Fitz. Trial and so adjudged 21 Jac. C. B. in the Case between Woodley and the Bishop of Exon and Manwaring 12. The case may so happen that albeit a man having a Benefice with Cure of Souls accept another and be Instituted and Inducted into the same yet his First Benefice shall not be void by Cession though the Benefices be incompatible though there be no Dispensation in the case and although himself be not otherwise qualified for Pluralities For it hath been Resolved That if a man having one Benefice accept another and be Instituted and Inducted into the Second and then read not his Articles that yet the First Benefice voids not by Cession because the Second is as not taken Notwithstanding it cannot be denied but that where a man having a Benefice with Cure of Souls above the value of Eight pounds per Ann. doth take another with Cure and is thereto Admitted Instituted and Inducted the First Benefice without Dispensation becomes void as in the Case of the King against George Lord Archbishop of Canterbury In which Case it was held That the Church was absolutely void in facto jure by taking of a Second Benefice and that by the express words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto jure quoad the Patron and all others Sed Q. whether void as to an Usurper for in some cases a Benefice may be void as to some persons and not void as to others As in the Case of Simony whereby as well as by Cession a Church becomes void yet in that case although it be void to all men quorum interest to the King and his Incumbent and all that claim under him and to the Parishioners to the Ordinary and to the like yet according to Sir Hen. Hobart Chief Justice it is not void to an Usurper for a man without Right cannot Present unto it as to a Church void nor the Ordinary so discharge himself if he receive the Clerk of an Usurper for he is none of them quorum interest Pasch 14 Jac. Rot. 1026. Case of Winchcombe against the Bishop of Winchester and Rich. Pulleston Hob. Rep. 13. If the Next Avoidance be granted to Three persons and after the Church become void and then Two of the Three Present the Third Grantee being a Clerk in this case the Presentation is good and the Bishop may not refuse him inasmuch as all Three were Joynt-tenants thereof by the Grant and only Two of them joyn in the Presentment for that the Third person cannot Present himself but if only one of these Three Grantees Present the Third the Bishop hath power to refuse him And if an Incumbent having the Advowson do Devise the Next Avoidance it seems it is good Trin. 13 Jac. B. R. Harris vers Austen Rol. Rep. 14. In Holland's Case it was Resolved That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure accept another with Cure the First was void but this was no Avoidance by the Common Law but by Constitution of the Pope of which the Patron might take Notice if he would and Present without Deprivation But because the Avoidance accrued by the Ecclesiastical Law no Lapse incurred without Notice as upon a Deprivation or Resignation so that the Church was void for the benefit of the Prtron not for his disadvantage But now if the First Benefice be of the value of Eight pounds per annum the Patron at his peril ought to Present for to an Avoidance by Parliament every one is party but if not of Eight pounds it is void by the Ecclesiastical Law of which he needs not take Notice 15. In a Quare Impedit The Defendant said A. was seized of the Advowson of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance and that J. S. died and made his Executor who Presented the Plantiff to the Church being void Upon Non concessit it was found That A. granted to J. S. durante vita ipsius J. S. primam proximam Advocationem and that he died before the Church became void Whether this was an absolute Grant of the Next Avoidance as is pretended was the Question And Resolved it was not but it is limited to him to Present to the Advowson if it becomes void during his life and not that otherwise it should go to his Executors and therefore it was Adjudged against the Defendant 16. The Incumbent of a Church purchased the Advowson thereof in Fee and devised that his Executor should Present after his decease and devised the Inheritance to another in Fee It was said the devise of the Next Avoidance was void because when his Will should take effect the Church was instantly void But the Court held the devise was good for the Law is so and it shall be good according to the intent of the party expressed in his will The Grant of the Next Avoidance during the Avoidance is void in Law Steephens and Clark's Case More 's Reports 17. In a Quare Impedit the Case was The Corporation of B. being seized of an Advowson granted the Next Avoidance to J. S. and afterward granted primam proximam Advocationem to the Earl of B. who granted it to the Plaintiff The Church became void J. S. Presented his Clerk who was Inducted and then the Church became void again It was Resolved that the Second Grant was void so as the Plaintiff had no Title for when he had granted primam proximam Advocationem to one he had not Authority to grant it after to another but if the First Grant had been lost so as it could not have been pleaded there perhaps the Second Grand had been good 18. In a Quare Impedit the Case was H. being Incumbent of a Church was Created a Bishop in Ireland and the Queen Presented the Defendant It was the Opinion of the Justices That this Creating of the Incumbent a Bishop in Ireland was a good cause of Avoidance and that the Queen should have it by her Prerogative But if the Queen doth not take the benefit of the First Avoidance but suffers a Stranger to Present and the Presentee dies she may not have Prerogative to Present to the Second Avoidance 19. The Next Avoidance of a Church was granted to A. and B. A. releases to B. and after the Church became void It was Adjudged in this Case That B. may Present and upon Disturbance have a Quare Impedit in his own Name
Or thus The Next Avoidance was granted to Two the one Released to the other who brought a Quare Impedit in his own Name and it was adjudged maintainable because it was before the Church was void 20. A. seized of the Mannor of D. to which an Advowson was Appendant granted the Next Avoidance to B. and D. eorum cuilibet conjunctim divisim Haered Executor Assignatis suis The Church void B. Presents D. to the Church Adjudged that the Presentment of him was good though he were one of the Grantees CHAP. XXVI Of Pluralities 1. Pluralities condemned by the Council of Lateran yet dispenc'd with by Kings and Popes 2. What in this matter the Pope anciently exercised by way of Vsurpation the King may now do de jure The difference between them in the manner how 3. What persons are qualified for granting or receiving Pluralities 4. Several Laws relating to Pluralities Dispensations and Qualifications 5. How the 8 l. annual value of a Benefice shall be understood whether as in the Kings Books or according to the true value of the Benefice 6. The Lord Hobart's Opinion touching the Statute of 21 H. 8. relating to Pluralities 7. What the Pope's Power in England was before the making of the said Statute And whether the taking of a Bishoprick in Ireland by a Dean in England makes the Deanary void by Cession 8. The Chaplains of Persons of Honour having divers Benefices shall retain them for their Lives though they be discharged of their Service 9. Whether the Ecclesiastical Court may take cognizance of Plenarty or Voidance after Induction And whether the cognizance of Cession or no Cession belongs to the Temporal or Spiritual Count. 10. Difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law 11. A Prohibition granted upon Sequestration of a Benefice by the Bishop 12. The Fifth Paragraph aforesaid Adjudged and determined 13. How the Voidance in case of Three Benefices in one person 14. Benefice not void if the King License the Incumbent to be an Incumbent and a Bishop 15. How the taking of a Second Benefice is a Voidance of the First 16. Whether so in case of a Chaplain of the King 17. Whether so in case of a Si modo or Modo sit by way of a Limitation in the Dispensation 18. Whether the word Dispensamus be necessary in the Letters of Dispensation for a Plurality 19. The Kings Retainer of a Chaplain by Word only qualifies him for a Plurality within the Statute of 21 H. 8. 20. Whether a Third Chaplain retained by a Countess Widow is qualified to purchase a Dispensation for Plurality 21. In reference to Plurality whether regard is to be had to the value mentioned in the Statute of 25 H. 8. or to the true value of the Benefice 22. Whether Admission and Iustitution makes the First Benefice void without Induction 23. Whether before the Statute of 25 H. 8. the Pope might here grant Dispensations for Pluralities 24. Whether the Retainer of a Chaplain may be good and sufficient without a Patent 25. In what case a Dispensation for Plurality may come too late though before Induction 26. Three Resolutions of Law in reference to Avoidance by reason of Plurality 1. PLurality according to the Common acceptation of the word is where one and the same person is possessed of Two or more Ecclesiastical Benefices with Cure of Souls simul semel It was long since condemned by the general Council of Lateran whereby it was Ordained That whatever Ecclesiastical person having one Benefice with Cure of Souls doth take another such shall ipso jure be deprived of the former and if he contest for the retaining thereof shall lose both Notwithstanding which Canon it was heretofore usual with the Pope to usurp a power of Dispensation in this matter the which de jure was anciently practised by Kings as Supream and as the original Donors of Benefices and Ecclesiastical Dignities witness Edmond that Monk of Bury who by virtue of such Dispensations held several Ecclesiastical Benefices at one and the same time The said Canon as to the substance thereof relating to Pluralities is now Confirmed by the Statute of 21 H. 8. 13. which limits the former Benefice with Cure of Souls to the yearly value of Eight pounds or upwards and the time of Avoidance thereof to be immediately after possession by Induction into the other with Cure of Souls with power of Presentation de novo granted to the Patron of the former Benefice and all benefit of the same to the Presentee as if the Incumbent had died or resigned Q. Whether the said yearly value of Eight pounds or above ought to be computed according to the valuation in the Kings Books as returned into the Exchequer and now used in the First-Fruits Office or according to the just and true value of the Benefice Q. likewise Whether a Parson of a Church Impropriate with a Vicar perpetually endowed accepting of a Presentation unto the Vicarage without Dispensation be a Pluralist within the Canon and Statute aforesaid The Negative is supposed to give the best Solution to the Question 2. The same power of granting Faculties Pluralities Commendams c. which anciently the Pope exercised in this Realm by Usurpation is by the Statute of 21 H. 8. cap. 13. and 1 Eliz. transferr'd unto and vested in the Crown de jure also from and under the King in the Archbishop of Canterbury and his Commissaries by Authority derived from the Crown The Pope anciently granted to Bishops after Consecration Dispensations Recipere obtinere Beneficium cum cura animarum to hold the same in Commendam the which he did in this Realm by Usurpation and which the Crown may now do de jure for the same power as aforesaid which the Pope had is by the Acts of Parliament in 25 H. 8. 1 Eliz. in the King de jure But there is a very material difference between the Dispensations anciently here granted by the Pope and those at this day by the King and Archbishop Confirmed by the Kings Letters Patents which are not good otherwise than to such as are Compleat Incumbents at the time of granting thereof whereas it was sometimes otherwise with the other whence it is observable that in Digbie's Case the Dispensation came too soon A. is Instituted and Inducted into a Benefice with Cure value Eight pounds per ann Afterwards the King presenting him to another with Cure he is Admitted and Instituted Afterwards the Archbishop of Canterbury grants him Letters of Dispensation to hold Two Benefices the King confirms the same Afterwards he is Inducted into the Second Benefice In this case the Dispensation comes too late because by the Institution into the Second Benefice the First Benefice was void by the Stat. of 21 H. 8. 3. The Acceptance of a Second Benefice with a Dispensation comes not under the notion of prohibited Pluralities in case
notwithstanding they were several Advowsons and several Quare Impedits might be brought of them and several Actions maintain'd for their several Possessions yet the Presentment of one man to the Parsonage and Vicarage was no Plurality because the Parsonage and Vicarage are but one Cure And there is a Proviso in the Statute That no Parsonage that hath a Vicar endowed shall be taken by the Name of a Benefice with Cure within the Statute as to make it a Plurality 6. The Lord Hobart in Colt and Glover's Case against the Bishop of Coventry and Lichfield is clear of Opinion That Bishopricks are not within the Law under the word Benefices in the Statute of 21 H. 8. cap. 13. So that if a Parson take a Bishoprick it avoids not the Benefice by force of this Law but by the ancient Common Law as it is holden 11 H. 4 60. But withal he holds it as clear That if a Bishop have or take two Benefices Parsonages or Vicarages with Cure either by Retainer or otherwise de novo he is directly as to these Benefices within the Law for he is to all purposes for those not a Bishop whether it be in his own Diocess or not but a Parson or Vicar and by that Name must sue and be sued and Prescribe and Claim For if any person having one Benefice with Cure c. take another c. whosoever will hold two Benefices must have such a Qualification and such a Dispensation as the Law 21 H. 8. requires Whereupon the Lord Hobart in the foresaid Case is clear of Opinion That if a man be qualified Chaplain to any Subject and then be made a Bishop his Qualification is void so as he cannot take two Benefices de novo after by force of that Qualification But if he had lawfully two Benefices before his Bishoprick he may by Dispensation of Retainer besides his former Dispensation to take two Benefices hold them with his Bishoprick And if a man being the King's Chaplain take a Bishoprick he holds that he ceaseth to be the King's Chaplain and Bishops are not in that respect Chaplains to the King within the meaning of the Statute So that the Clause of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain will not serve them In this Case of Colt c. against the Bishop of c. he is of Opinion That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Dispensation procure another with Cure to be united to it after though they make but one Benefice for this Cautel of Union is provided for by Name But of Unions before he is of another Opinion Case Colt Hob. Rep. 7. In ancient times the Pope used to grant Dispensations of the Canons in this Realm and so might the King have done The first Statute that restrain'd the power of the Pope was that of 21 H. 8. of Pluralities That the Church shall be void notwithstanding any Grant of the Pope Also the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have dispensed with a man to have twenty Benefices and so might the King The 21 H. 8. was the first Statute or Law which gave allowance for Pluralities afterwards by the 28 H. 8. the power of the Pope was given to the King But as it was said and agreed in the Case of Evans and Ascough that was not by way of Introduction but Cumulutive and by way of Exposition And by that Statute the Archbishop of Canterbury had in this matter a concurrent power with the King and Dispensation granted by the King or by the Archbishop is good Also in the said Case it was agreed by all the Justices That if a Parson or Dean in England doth take a Bishoprick in Ireland it makes the first Church void by Cession because Ireland is a Subordinate Realm to England and governed by the same Law For it was there agreed by all as well by the Justices as those of the Barr That if a Parson or Dean in England take a Bishoprick in Ireland the first Church is void by Cession Justice Whitlock gave this Reason for it Because there is but one Canon Law per totam Ecclesiam and therefore wherever the Authority of the Pope extended it self be it in one or divers Realms the taking of a Bishoprick made the Deanary or Parsonage void Nemo potest habere duas Militias nec duas Dignitates est impossibile quod unus homo potest esse in duobus locis uno tempore And 5 R. 2. F. Tryal 54. the whole Spiritual Court is but one Court which Book is very remarkable to that purpose That the Canon Law is but one Law Which Reason was also given by Justice Doderidge in the same Case and upon the same point who said That the Law of the Church of England is not the Pope's Law but that all of it is extracted out of Ancient Canons as well General as National Another Reason which he then gave was Because Ireland is a Subordinate Realm and governed by the same Law Because although before the time of H. 2. they were several Kingdoms or Realms yet the Laws of England were there Proclaimed by King John and is subject to the Laws of England And if the King having a Title to Present to a Church in Ireland confirm it to the Incumbent under the Great Seal of England it is good 45 Ed. 3. 70. 8. In Savacre's Case it was adjudged in the Common Pleas That if a Baron or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices and after they discharge their Chaplains from their Service they shall retain their Benefices during their Lives and if the Baron takes others to be his Chaplains they cannot take many Benefices during the Lives of the others which are Beneficed and Discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplains 9. T. prayed a Prohibition to the Arches the Case was this One had a Recovery in a Quare Impedit and he had a Writ to the Bishop against T. upon which A. his Clerk was admitted c. and after the Recovery died and T. supposing his heir to be in the Ward of the King and that the said A. took another Benefice without sufficient Qualification by which the Church was void by Cession and he attained a Presentation of the King and he was Admitted c. by the Lord-keeper being within the Diocess of Lincoln and A. sued him in the Ecclesiastical Court and T. prayed a Prohibition and it was granted per totam Curiam for without question there ought nothing to be questioned in the Ecclesiastical Court after the Induction of the party And whether it is a Cession
or not doth properly belong to the Common Law And Jones cited a Judgment in William's Case according Note that by the Constitution of Otho and Othobon That Institution and Induction is voidable in the Ecclesiastical Court if no Prohibition be prayed 10. In the Case of the King against the Archbishop of Canterbury and Thomas Prust Clerk in a Quare Impedit was vouched Holland's Case in Cok. 41 51. to shew that there is a difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law For before the Statute by the taking of the second Benefice the first Church was void but not so that the Lapse incurred upon it And as for Pluralities the words of the Statute are That it shall be void as if he were naturally dead and therefore if a man takes a second Benefice and dies Issue ought to be taken whether the first vacavit per mortem And it is found That Not For it was void before the death of the Incumbent 11. P. was Collated Instituted and Inducted by the Bishop of Exeter Patron Dr. Hall the Bishop Collates another pretending that the first Incumbent had taken a second Benefice whereupon the first was void and revera the first Incumbent had a Dispensation And notwithstanding that the Bishop Sequesters the Benefice and upon Discovery thereof to the Court a Prohibition was granted 12. In Bene's Case against Trickett the point was Whether the value of the Church for Plurality by 21 H. 8. shall be eight pounds according to the Book of Rates and Valuation in the First-fruits Office or according to the very value of the Church per Annum Atkinson That according to the value of the King's Books For the Parliament never thought that any man could live upon so little as eight pounds per Annum which is not six pence a day Note 38 E. 3 4. and Dyer 237. but by the Court That it shall be according to the very value of the Church in yearly value in the Statute of 21 H. 8. And by Gawdy and Fenner to whom agreed Yelverton That the eight pound shall be accounted according to the very value of the Church per Annum 13. In a Quare Impedit it was doubted If A. having two Benefices with the Cure by Dispensation and then takes a third Benefice with Cure If now both the first Benefices or the first of them only be void Hieron said That it was adjudged that both of them should be void 14. If the King grant a Licence to an Incumbent to be an Incumbent and a Bishop and he afterwards be made a Bishop the nââice is not void Henry de Blois Brother to King Stephen was Bishop of Winchester and Abbot of Glassenbury 15. It seems that at the Common Law if an Incumbent had taken a second Benefice with Cure neither the first nor the second had been void But by the General Council of Lateran held in the year 1215. it was ordained That if a man took divers Benefices with Cure of Souls the first should be void unless he had a Dispensation from the Pope This Constitution of the said General Council is ratified and confirmed in Pecham's Constitutions at a Provincial Synod held in this Realm Also if an Incumbent take a Second Benefice with Cure whereby the first is void by the Canon as to the Patron so as he may Present before any Deprivation yet until Deprivation it is not void as to a Stranger for if he sues a Parishioner for Tithes the taking of a second Benefice is not any barr to him Trin. 13. Car. B. R. per Justice Bark which Justice Yelverton in his Argument in Prust's Case said That it had been so Adjudged And if an Incumbent of one or more Benefices with Cure be consecrated Bishop all his Benefices are ipso facto vold upon which Voidance the King and not the Patron is to Present to the Benefices so void by Cession and any Dispensation after Consecration comes too late to prevent the Voidance for the Pope could formerly and the Archbishop now can sufficiently Dispense for a Plurality by the Statute of 25 H. 8. The chief Text of the Canon Law against Pluralities seems to be that of the Decretal de Praebend Dign c. de multa where it is said That in Concilio Lateranensi prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum Instituta c. Et praesenti decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale beneficium habehat sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. Consonant to which is that in Decret Caus 21. q. 1. In duabus Ecclesiis Clericus conscribi nullo modo potest In the Case of a Commendam adjudged in Ireland the Original and Inconvenience of Dispensations and Non obstante's was well weighed and considered where it was said That the Non obstante in Faculties and Dispensations was invented and first used in the Court of Rome for which Marsil Pat. pronounced a Vae against the said Court for introducing that clause of Non obstante That it was an ill President and mischievous to all the Commonwealths of Christendom For the Temporal Princes perceiving that the Pope dispensed with Canons in imitation thereof have used their Prerogative to dispense with their penal Laws and Statutes when as before they caused their Laws to be religiously observed like the Laws of the Medes and Persians which could not be dispens'd with See the Case of Penal Statutes Co. 7. fo 36. h. For this Reason it was that a Canonist said Dispensatio est vulnus quod vulnerat jus commune And another saith That all abuses of this kind would be reformed Si duo tantum verba viz. Non obstanie non impediâent And Matth Par. in Anno Dom. 1246. having recited certain Decrees made in the Council of Lions which were beneficial for the Church of England Sed omnia baec alia says he per hoc repagulum Non obstante infirmantur 16. In a Quare Impedit the Case was Dr. Playford being Chaplain of the King accepted a Benefice of the Presentation of a common person and he after accepted another Presentation of the King without any Dispensation both being above the value of eight pounds per Annum The Question was Whether the first Benefice was void by the Statute of 21 H. 8. cap. 13. For if that were void by the acceptance of the second Benefice without Dispensation then this remains a long time void so that the King was intituled to present by Lapse and presented the Plaintiff The Statute of 21 H. 8. provides That he who is Chaplain to an Earl Bishop c. may purchase Licence or Dispensation to receive have and keep two Benefices with Cure provided that
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-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
tithable no Tithes of Pasture of Milch-kine grown dry unless kept for Sale 45. Composition for Tithes for life not good without Deed. 46. Estovers burnt in the house not Tithable The Hearth-peny good by Prescription 47. A Composition for Tithes de anno in annum 48. The Modus decimandi is Suable in the Ecclesiastical Court as well as the Tithe it self 49. Proâibition in case of Libel to prove in perpet rei memo 50. Custome of Tithe-Grass Cocks as to both Mathes 51. In a Prohibition upon matter at Common Law and not within the Stat. of 2 E. 6. 13. the Suggestion need not be proved in Six months 52. Tithe-Hay of Headlands Custome and Prescription 53. Tithe-Hay of Heathlands also Tithe of Pidgeons 54. Minute Tithes to the Vicar 55. Tithes to Parson and Vicar may amount but to one Action 56. The Curate may not Prescribe in Tithes against the Parson 57. Curates may sue for Pensions in the Ecclesiastical Court 58. By the Civil Law the Parson to have Notice when Tithes set out 59. Action on the Case against a Compounder for Tithes Suing in the Ecclesiastical Court 60. Modus decimandi by one may hold as to others for a Prohibition 61. Composition for one year good without Deed not if for years 62. Tithe-Hasel Holly Willow Whitethorn Whether the Parishioner shall preserve the Parsons Tithe for him 63. Testis Singularis not sufficient to prove payment of Tithes in the Ecclesiastical Court 64. Composition for Tithes and a Prohibition thereon 65. Tithes taken away by a Stranger after they are set out the Parsons remedy lies at the Common Law 66. In what Case no Costs upon failure of Proof of the Suggestion within the Six months 67. Modus Decimandi may be Sued for in the Ecclesiastical Court where if denied they are to surcease 68. Custome in Cornwall touching Tithes of Sea-fâsh 69. In what Case an Agreement for Tithes for years may be good without Deed. 70. In what Court Tithes of Rents in London may be Sued 71. A Collector of Tithes cannot License a Parishioner to carry away his Corn. 72. Whether Debt lies for Treble dammages upon Fraudulent setting forth of Tithes 73. Tithes whether they belong to the Parson or the Vicar cognizable in the Ecclesâastical Court where the Right of Tithes is confessed 74. The Ecclesiastical Court not Judges of the Bounds of a Parish 75. Modus Decimandi in reference to a Park 76. A Frâudulent setting out of Tithes is no setting them out at all 77. The Vicar shall have Tithe of Rape-Seed being within a Prescription though a new thing in England 78. What the word Garba signifies 79. Whether Wood in its own nature be great Tithes and in what case it shall pass by the words de minutis Decimis 80. If two Titles of Tithes unite in one person there need but one Action for them 81. A Parson may not sett a Lease for years of Tithes per parol only 82. If a Parson be disturbed in carrying away his Tithes seâ out his Remedy lies properly in the Ecclesiastical Court 1. TITHES Dismes Decimae probably an abbreviation from the Saxon Teoâunâ or Tithing properly Decuria in that Language Lamb. Expl. of Sax. words verb. Deâuria That the Apostles and Elders at Jerusalem were competently supplied by the Contributions of the Jewish Proselytes is very conjecturable in that they sold their possessions and brought the price thereof and laid it down at the Apostles feet and such as then planted the Gospel and labourââ in the Word and Doctrine had their maintenance by the Contributions of their Converts Vid. Concil Grang. Can. 7 8. And St. Cyprian writing to his Church of Carthage Epist 33 34. to receive Aurelius and Cellerinus Confessors saith in Epist 34. Presbyterii honorem designasse nos ilâis jam sciatis ut sportulis iisdem cum Presbyteris honorentur Divisiones Mensurnas aequatis quantitatibus partiantur Know you that we have already designed to them the Dignity of Presbytership that they might be honoured with such allowances as Presbyters have and receive equal shares in the Monthly Dividends So that Sportulae were the allowances which in this Infancy of the Gospel the Presbyters had out of the Contributions of the Converts And the Fratres Sportulantes mentioned by him in Epist 66. were the Clergy which received such allowance These Converts after the Conversion of Constantine the Emperour many of them being Governours and Nobles settled great and large Demesn-Lands upon those who Converted them and that according to Mr. Seldens conjecture the first Oratories or places of Publick Worship were built in the Lands bestowed on them which first Oratories were called Cathedrals Sees or Seats from their constant Residence thereon That the Christian Church even in times of Persecution laid claim to Tithes as due Jure Divino is partly confessed by Mr. Selden himself citing some passages in the Ancient Fathers to that purpose But when the Empire became Christian then the Christian Clergy did more earnestly press the Donation of Tithes and in process of time they prevailed not only by Preaching and Canons but by the Edicts of Emperours and Kings to have Tithes given to the Church And it appears that the Roman Empire where-ever it did reduce any Conquered Countrey in formam Provinciae appointed the Farmers of the Customes to collect among other Impositions the Tenths of the Tenants of the Empires that is of all who occupied any Land in the Conquered Province either as immediate Tenants to the Empire or as Sub-Tenants under them The Publicans therefore who collected these Tributes were called Decumani as Mr. Selden pag. 39. of his History of Tithes doth observe out of Appian But whether these Tenths were received by the Senate or Emperours upon a Civil or Religious account is not liquid and clear For the Emperours alwaies till Christianity came in nay Constantine and other Emperours even after Christianity was received till Gratian's time as the Noble and Learned Du-plessy in his Mystery of Iniquity observes out of Zosimen continued the chief Pontifice or High-Priesthood in their own persons And as touching us here in England Dr. Heylin P. H. Treleyny in his Treatise touching Tithes p. 3. saith Tithes are not given to the Ministers by the People for Sr. Ed. Coke on Litt. Tenures lib. 1. c. 9. Sect. 73. fo 58. asserteth That it appears by the Laws and Ordinances of Ancient Kings and especially of King Alfred That the first Kings of this Realm had all the Lands of England in Demesn and Les Grandé Mannors Royalties they reserved to themselves and with the Remnant they for the defence of the Realm enfâoffed the Barons of the Realm with such Jurisdiction as the Court Baron now hath And at this time when all the Lands of England were the King Demesns that Ethelwolph the Second Monarch of the Saxon race his Father Egbert being the first which brought the former Heptarchy under one
and are at issue upon the Modus which is found for the Defendant and Consultation granted whereupon Judgment was given in the Ecclesiastical Court against Bowry upon which B. appealed and prayed a new Prohibition and Noy moved for a Consultation because that a Prohibition and an Attachment upon it are but one Suit for the Contempt of the party in bringing his Suit in another Court and translating this from the Kings Court and when it is once Tried for the Desendant the same thing shall not be Tried again Note That in this Case upon the Statute of 50 E. 3. 4. it was agreed by the Court That a Prohibition awarded and afterwards Consultation granted that upon the same Libel no Prohibition shall be granted again but if there be an Appeal in this Case then a Prohibition may be granted but with these differences 1 if he that Appeâls pray the Prohibiâion there he shall not have it for then Suits shall be deferr'd in infinitium in the Ecclesiastical Courts 2 if the Prohibition and Consultation were upon on the body of the matter and the substance of it for otherwise he shall be put many times to try the same matter 20. The Lord Rich was seized of Hadley Park and of all the Tithâs thereof and payed for the Tithes but one Buck in the Summer and a Doe in the Winter for 30 years past The Park was disparked and turned into arable Land and the Parson would not receive this Fee-Buck and Doe but would have Tithe-Corn and thereupon sued in the Ecclesiastical Court and he brought a Prohibition And Catlin said That âe need not pay other Tithes but Buck and Doe for although they be not Tithable yet may they be paid by Composition and he may not take them but they arâ to be delivered to him And in like manner Partridges and Pheasants in a Garden are not Tithable yet may they be paid in lieu of Tithes and shall be brought dead to the Parson and although there be no Park yet may he give a Buck out of another Park and perhaps it may be made a Park again 21. The Case was A Church in which there had been a Parson and Vicar time out of mind and the Parson used to have the Great Tithes and the Vicar the Small and for the space of forty years last past it was proved that the Parson had Tithes paid him out of a Field of twenty acres of Corn and now the Field is sowed with Saffron and the Vicar sued for the Tithes of Saffron in the Ecclesiastical Court and the Parson had a Prohibition Coke I conceive the Parson shall have the Tithes for by the Statute of 2 H. 6. it is Enacted That Tithes shall be paid as hath been used the last forty years and this hath been alwaies Tithable to the Parson and although the ground be otherwise employed yet the Parson shall have the Tithes And so was it in Norfolk in the case of a Park where the Parson prescribed Pro modo Decimandi to be paid 3 â 4 d. for all Tithes arising out of the said Park and although the Park was afterwards converted to Arable yet no other Tithes shall be paid Popham It hath been adjudged otherwise in Wâoth's Case in the Exchequer But the Law is clearly as hath been said and the difference is when the Prescription is to pay so much money for all Tithes or when the Prescription is to pay a shoulder of every Buck or a Doe at Christmas for there if the Park be disparked Tithes shall be paid for Tithes are not due for Venison and therefore they are not Tithes in specie And I conceive that Tithes of Saffron-heads shall be comprehended under Small Tithes and although the Tithes of this Field have been paid to the Parson yet it being converted to another use whereof no gross Tithes do come the Vicar shall have the Tithes And so if arable Land be converted into an Orchard the Vicar shall have Tithes of the Apples and so if the Orchard be changed to Arable the Parson shall have Tithes Quod Fenner concessit 22. In one Hawkin's Case Libel was in the Ecclesiastical Court for Tithes for Lambs for seven years And there he proved payment by one Witness and a Prohibition was granted for Non-allowance of that Proof 23. On the Stat. of 2 Ed. 6. c. 13. for setting out of Tithes the Case was this Corn was set out âor Tithes and the Owner of the Land took the Corn Dammage feasant but in the Declaration it is not shewn how long the Corn remained on the ground And by the Court it is not good inasmuch as it doth not appear that the Owner of the Land had any Dammage at all for he doth not shew how long the Corn remained on the ground And the usual course in such cases is if Tithe be set out and the Parson take it not away in due time the party shall have an Action on the Case By the Court a man cannot distrain Shocks of Corn but he may distrain a Stack Dammage feasant But in this case it is not shewn how long it remained on the ground and therefore it doth not appear that he was damnified And so after the Tithe is clearly set out the Parson may by the Statute have an Action of Trespass if any take them away but if only a meer Stranger set out the Tithe that settles no property in the Parson so as that he cannot have any Action for the taking thereof away 24. It seem'd clear to Noy that if Two persons have portions of Tithes by halves in one Parish the Stat. of Ed. 6. that appoints Tithes to be set out doth not in that case oblige the Parishioner to divide the Tithes by halves and to set out their parts singly but the Parishioner ought only to set out the Tenth insomuch that if the Tithe be of one Lamb the Parishioner cannot divide it And it hath been Adjudg'd that the Parishioner is not bound to divide the Tithe into Moities but the Parsons shall divide it between themselves 25. Noy surmized against a Libel for Tithe-Sheaves that the Parishioners are at the charges to bind the Corn in Sheaves and for the better dividing thereof they use to make it up into Sheaves and when it is made into Shocks they put thereof into a Stack for the Tithes And for that the Parishioners have been at this pains they have used to be discharged of Tithes for the odd Sheaves when they will not make a Stack Adjudg'd a good Custome and a Prohibition was granted because the Parishioners therein do more than of Common right they are obliged unto 26. The Case touching Tithe of Glebe-Land Reported as aforesaid by Leonard to be between Stile and Miller is the same with that Reported by Owen to be between Stile and Miles misprinted But the Case was this Stile Parson did suggest
the probable derivation of that word and what it signifies 2. The manner and form of Publication of Banns according to the Provincial Constitutions 3. By whom Licences for Dispensation of Banns may be granted according to the Canons Also to whom and under what Conditions or Cautions 4. Requisites or Preparatories in Law unto such Licences 5. A Case at Common Law with the Resolutions of the Court relating to Banns with the power of the Ecclesiastical Jurisdiction therein 1. BANNS bannus vel bannum if Ban in the Brittish Language signifies clamor as Mr. Blount gives it in his Nomo-Lexicon then we need seek no further for its Derivation Bannos Q. an non declinata voce à Graece ãâã ãâã ãâã ãâã ãâã omne ãâã ãâã ãâã ãâã ãâã innotescat Mutatur enim facile ãâã ãâã ãâã ãâã ãâã in ãâã ãâã ãâã ãâã ãâã For though the Word be frequently mentioned by the Feudists and thence applied to other uses as to that which we here in this Kingdom call a Proclamation whereby any thing is by Authority publickly Commanded Permitted or Forbidden Vincen. de Franch Decis 521 360. yet in the Sence here meant and intended it is not so properly a Proclamation as a Publication or a publick Notice-giving And therefore by the word Banns as we use it is intended that publishing of Matrimonial Contracts in the Church tempore Divnorum before Solemnization of Marriage to the end That if any have ought material to object against the intended Marriage signified by such Publication either in respect of Pre-contract or otherwise they may seasonably make their Exception against it consonant to the very Letter of the Canon Law where Banna sunt proclamationes Sponsi Spansae in Ecclesiis fieri solitae c. 27. extr de Spons c. ult Qui Matrim pos c. ult de clandest Despon vid. Gothof ad Nov. Leon. 89. in med ibi Hottoman is very confident that there is both bannns and bannum and that they signifie Two distinct things and neither of them to our purpose for according to his exposition the one should signifie an Edict what day their Vassals or Slaves furnish'd with Horse and shall encounter one another the other a Sanction or Decree that is a Mulct or Fine imposed on him that does not obey the Edict Hottom in verb. Bannus De verbis Feudalibus 2. In the Provincial Constitutions Banna are publick Proclamations or Denuntiations Lind. Provin Constit de cland Despon c. 1. glos verb. Bannorum Others describe them to be Edicta publice proposita Petr. de Anchor in cap. cum in tua Ext. de Sponsal By the said Provincial Constitutions the Banns ought to be Solemn Publications that is they ought to be thrice published in the Parochial Churches where the contracting Parties and their Parents dwell on 3 Sabbath days or 3 Festival daies allowing some interval of time between each at the time of Divine Service when most of the Parishioners are assembled together by the Parsons of the said Parishes respectively or others in holy Orders at such times and seasons wherein Solemnization of Marriage is not Canonically prohibited glos verb. Bannorum ubi supra Yet where three Festivals immediately succeed each other such Publication in them made holds good in Law Prov. Const de Spons glos in verb. a se distantibus As also shall the Marriage it self when once solemnized albeit such Publication of Banns as aforesaid did not precede the same gl in v. Solen Edit de cland Despon ubi supra 3. But by the Ecclesiastical Canons now in force it is Ordained That no Licence for the Solemnization of Marriage shall be granted without thrice open Publication of the Banns according to the Book of Common Prayer by any Person exercising any Ecclesiastical Jurisdiction or claiming any Priviledges in the right of their Churches but shall be granted only by such as have Episcopal Authority or the Commissary for Faculties Vicars General of the Archbishops and Bishops sede plena or sede vacante the Gardian of the Spiritualties or Ordinaries exercising of right Episcopal Jurisdiction in their several Jurisdictions respectively and unto such Persons only as be of good State and Quality and that upon good caution and security which shall contain these four Conditions 1 That therein is not any Impediment or Precontract Consanguinity Affinity or other lawful Cause to hinder the said Marriage 2 That there is not any Suit depending in any Court before any Ecclesiastical Judge touching any Contract or Marriage of either of the said Parties with any other 3 That they have the consent of their Parents or Guardians 4 That they shall celebrate the said Marriage publickly in the Parish-Church or Chappel where one of them dwells and that between the hours of 8 and 12 in the Forenoon Pasch 8. Car. B. R. case Matingley vers Martyn It was resolved that if any Marry without the Proclamation of Banns or Licence to dispence therewith they are citable for the same in the Ecclesiastical Court and no Prohibition lies in the case Jones Rep. 4. Before any such Licence as aforesaid can be granted it must appear to the Judge by the Oaths of two sufficient witnesses that the Consent of the Parents or Guardians is thereunto obtained and one of the Parties must personally swear that he beleives there is no Lett or Impediment of Precontract Kindred or Alliance or of any other lawful Cause whatsoever nor any Suit commenced in any Ecclesiastical Court to hinder the said Marriage according to the Tenor of the said Licence But in case the Parties be in Widowhood then the Clause relating to the Parents Consent may be omitted the penalty for offending in the Premisses is six months suspension ab executione Officii in any Commissary for Faculties Vicars General or other the said Ordinaries together with a vacating of every such Licence or Dispensation and subjecting the Parties marrying to the punishments appointed for clandestine Marriages The Syntagmatist tels us that there is a Canon extant made by John Metropolitan of Muscovy who is held as a Prophet in Russia to this day that Matrimonium non nisi publice in Ecclesiis contrahatur Petrus Gregor Tholos 5 In the case of Matingly against Martyn it was resolved 1 That the Cognuzance of all fornications Adulteries and suspected living in Adultery doth appertain to the Ecclesiastical Court 2 That if any marry without proclamation of the Banns without a Licence to dispence therewith they are citable in the Ecclesiastical Court for the same and no Prohibition lies in that case as aforesaid 3 That if any Licences to marry without Banns be granted by the Ordinary of the Diocess or by Commissaries or Officials in their Jurisdictions or by the Archbishop in his Province before the Stat. of 25. H. 8. The Cognuzance of the sufficiency of such Licence of the form of the Dispensation and of the Conditions and Provisoes of such Licence and
party a Sentence there given and Costs pro expensis litis the Husband did release these Costs which they would not there allow of upon a suggestion here that the Husband was divorced causa Adulterii a Prohibition was prayed and for which it was urged that the Release by the Husband was good the Suit being there for Defamation Sentence there given the Wife divorced à Mensa Thoro which doth not dissolve Vinculum Matrimonii but that this notwithstanding they may come together again when they will and such a Divorce is no Barr of Dower Doderidge They are only to restore the Party to her good Name in Case of Defamation The point here only is the Husband and Wife are divorced Causa Adulterii the Wife sues in the Ecclesiastical Court for Defamation and there recovers and Costs are given the which the Husband did release whether this Release thus made by the Husband shall barr the Wife of her Costs And if they will not allow of this Release there whether a Prohibition shall be granted or not The Whole Court clear of opinion that no Prohibition in this Case is to be granted And so by the whole Court the Prohibition was denied CHAP. XXXVIII Of Sacriledge 1. Whence the word Sacriledge is derived what it imports and the several kinds thereof 2. It is taken properly and strictly or improperly in sensu largo and is of a mixt Cognizance 3. The several ways whereby Sacriledge may be committed 4. Who are intended by Persons Sacred against whom Sacriledge may be committed the division thereof 5. Bartol's Definition of Sacriledge several severe punishments thereof Recorded by Historians 6. The several punishments inflicted on Sacrilegious persons according to the Civil and Canon Law The Civil Law more severe therein than the Canon how punish'd anciently in this Realm according to the Ecclesiastical Constitutions thereof 7. The dreadful Curse anciently and solemnly pronounced in Parliament against Sacrilegious persons 8. A remarkable Judgement that happened to a Bishop of Bangor for Sacriledge 1. SACRILEDGE from Sacro Lego or à Sacris Legendis that is suffurandis for that word Lego sometimes signifies furari or rapere Isidor lib. 1. Origin lit s Sacrilegus qui sacra legit h. e. furatur In the Greek ãâã ãâã ãâã ãâã ãâã importing as much as to say ãâã ãâã ãâã ãâã ãâã that is praedari vel violari Sacra for Sacriledge is the violation or usurpation of some thing that is Sacred Gloss in cap. omnes Ecclesiae 17 q. 4. and may be committed three several ways As 1. either in respect of the Person as when a man doth wound or strike an Ecclesiastical Person in Holy Orders or 2. in respect of the Place as when one violates the Priviledges or immunities of the Church or Church-yard or 3. in respect of the Thing as when a thing Sacred or Consecrated or deputed or dedicated to some Sacred use is usurped upon and taken away and this holds true whether auferatur Sacrum de Loco sacro vel non sacro vel non sacrum de sacro Lindw de Offic. Archipres c. 1. glos in verb. Sacrilegium 2. Sacriledge is taken either strictly and properly as when a thing sacred is stolen out of a sacred place so it is held according to the Law generally but either will amount to Sacriledge according to the Canons or in a large sense and improperly and so it extends to other Crimes l. si quis c. de Epis cle c. de sacrileg per totum As infringing the Church's Liberties invading Ecclesiastical goods and the like whereof more hereafter Lindw de immun Eccl. c. 2. glos in ver Sacrilegi The Emperors held their Constitutions so sacred that they called the violation thereof Sacriledge l. un c. de Crimi Sacril This Crime is of a mixt cognizance partly Ecclesiastical partly Secular whereof each Jurisdiction may jure proprio take cognizance c. cum sit generale De foro compet So that this Crime of Sacriledge is not meerly Ecclesiastical because the cognizance âââreof in some Cases may appertain to the Secular Judge at least quoad poenam si quis in hoc c. de Epis Cler. And Hostiensis himself doth confess as much quoad poenam Corporalem otherwise it is as to the censures of the Church contra talem fulminadas 3. There are many ways whereby Sacriledge may be committed as by invading the rights and goods of the Church by unjust and illegal vexing and molesting the Church by wasting and destroying the Church by violating Ecclesiasticks by a Clerks consulting with Soothsayers and Diviners by violating Church-priviledges and Immunities by striking a Clerk Lindw de immun Eccl. c. seculi glo in verb. ausu Sacrilego Church-burners Church-breakers Church-robbers by stealing the Church-bible the Calice or other thing out of the Church by violating the Church-porch or breaking the Doors thereof by striking in the Church or apprehending and taking any one there by obstructing the Jurisdiction of the Church or hindering any of that free access which he ought to have to the Church by usurping the Guardianship or custody of a Church that is void and under that pretence posess themselves of the Goods and Revenues thereof by usurping and occupying the Oblations and Offerings of the Church but to explicate this Crime of Sacriledge to its full latitude it is requisite in order thereto to distinguish aright of things Sacred which are violated thereby for as Habits are distinguish'd ex objectis so Vices by the matters about which they are conversant now the matter of Sacriledge is ever something Sacred and therefore Sacriledges are distinguish'd according to the diversity of Sacred things whence Aquinas inferr's that as there are Three kinds of things Sacred viz. Persons Places and some other Things So there is a Threefold kind of Sacriledge viz. against Persons against Places and against other Things consecrated and dedicated to Divine Worship Which distinction the Canonists do generally hold in each Member thereof As Sacriledge 1. Against Ecclesiastical Persons cap. sicut c. quisquis 17. q. 4. in c. si quis deinceps usque ad cap. si quis suadente ead Caus q. 2. Sacriledge against sacred places cap. Miror c. Frater 3. Against the Goods and Revenues of the Church cap. Sacrilegium cap. Omnes Ecclesiae cap. Attendendum It being expresly said that Qui pecunias vel res Ecclesiae abstulerit Sacrilegium facit in cap. qui rapit There is no Sacriledge but may be reduced to one of these three heads although under them there may be divers other kinds of Sacriledges more particularly subdistinguish'd 4. By Persons Sacred is here understood such as in a peculiar manner are set apart and dedicated to Divine publick Worship according to Sacred Ordination and the principal kind of Sacriledge commissable against such is the laying of violent hands on them which is a violation of their Immunities or Priviledges cap. si quis
suadente 17. q. 4. And as to Sacriledge committed against Places sacred the Canon is That Sacrilegium Committitur auferendo Sacrum de sacro vel non sacrum de sacro aut sacrum de non sacro cap. quisquis 17. q. 4. Of which Three Members the Third doth not belong to this circumstance of Place And as to the second Member thereof the Civil Law determines otherwise than the Canon for in that Case the Civil Law says that Res Privatorum si in aedem sacram depositae surreptae fuerint furti actionem non sacrilegii esse l. Div. ff ad leg jul pec yet among the Canonists it is communis opinio that furtum in loco sacro sacrilegium est And where the Canon Law speaks of Churches it says si qui deposita vel alia quaelihet exinde abstrahunt velut Sacrilegi Canonicae Sententiae subjaceant But every Offence done in the Church is not Sacriledge yet it is held that it is in the power of the Ecclesiastical Jurisdiction so to prohibit the doing of some certain things and actions in the Church that such as offend against the Prohibition shall be reputed Sacrilegions though the things in themselves are not Sacriledge The Canonists also do hold that the perverting of the Holy Scriptures to uphold maintain or confirm errors is gravissimum Sacrilegium Suarâz lib. 3. de Sacrilegio c. 7. nu 1 5. Notwithstanding what has been said Bartol defines Sacriledge to be the taking away or stealing some sacred thing out of some Publick sacred place this is most properly Sacriledge according to Bartol Bart. in l. Sacrilegii poenam ff ad Leg. Jul. Pcculat to which it may not be impertinent or superfluous to add cum animo furandi The Civil Law punish'd it with death Bart. ibid. alii D D. in dict L. Menoch de Arbit Jud. l. 2. Cent. 4. Cas 389. nu 2. So the Athenians put a Boy to death for stealing a Plate of Gold out of Diana's Temple which fell from her Gown Aelian lib. 5. de var. Hist cap. 16. Among the Grecians the Sacrilegious Persons were not to have the common humanity of a Grave but were cast out unburied Diod. Sicul. lib. 16. Biblio in 6. An. Philippi Philip King of Macedon in his holy Warr against the Pâocenses having taken their General Onomarchus and routed their Army commanded the General to be hanged the rest to be drownd like Sarcrilegious persons Idem dict lib. anno 8. Philip. Alexander the Great in the Olympick Games caused it to be proclaimed by an Herauld that all Exiles and Banished persons except for Sacriledge and Murder should be permitted to return to their own Countrey Idem lib. 17. An. 9. Alexandri Gemist Plâtho lib. 2. de Gestis Graec. post pugnam Mantineam Pleminius Ambassador from Scipio to the Senate of Rome having robb'd the Treasure of Proserpina and being now nigh dead by a most searful and horrid kind of disease before he was brought to his Trial the Roman Senate notwithstanding condemned him in double the sum to Pr serpina Livius lib. 9. Bel. 2. Punic Valer. l. 1. cap. 2. Domitian when it was reported to him by the Flamens or Jupiters High Priests that one had erected a Monument for his Son with stones design'd for the Temple or Capitol commanded the Monument to be pulled down and demolished the Bones and Ashes of the Party to be cast into the Sea and the stones to be restored to the Temple Sueton. in Domitian cap. 8. Xenophon relates out of the Laws of the Athenians against Sacrilegious persons in these words viz. Judge O Athenians in this matter according to the law made against Sacrilegious persons and Traitors That if any hath committed Treason or Theft of things Sacred let him be adjudged to death and let Sentence be that be be not buryed in Athens and all his goods confiscate Xenoph. de lege Atheniens Another Law against Sacrilegious persons apud Constantinum Harmenopulum in haec verba Whoever steals any thing Sacred out of a Sacred place let him have his Eyes pluck'd out Const Harmen lib. 6. Prompt jur car 5. Gunctranus King of the Parisians and Galls with his Nobles and Bishops assembled on the Festival of Sumphorianus made a Law that their Armies or Soldiers should not on pain of death either on their March or on a Victory rush violently into any Churches or rob the same Greg. Turon lib. 8. Hist Franc. c. 30. Clearchus and Sitacles Soldiers under Alexander the Great being accused by his Army of robbing and spoiling Churches and removing antient Monuments were commanded to be put to death Orxines who succeeded Phrasaortes in the Kingdom of Persia being accused and convicted of robbing and wasting the Temples Churches and the Monuments of the Kings was by Alexanders command Crucified to death Arria lib. 6. in fin de expedit Alexan. The Law in some Cases doth leave the Penalty of Sacriledge Arbitrary especially where any Churches are notoriously and violently broken open and the Offerings or sacred Vessels thence stolen away by night in which case the Punishment is Capital and so practised in the kingdome of Naples Boerii Decis 254. nu 13. It is not the value of the thing stolen that causes this crime of Sacriledge to be so severely punished but because there is more of audacity and iniquity in this kind of Theft than of others of inferiour Circumstances and therefore Calistratus accused Menalopus that he had robd'd Templi Custodes Anglice Church-wardens and had thence stolen away three very small Vessels minimi ponderis yet even this was punished as Sacriledge of a very criminal nature Innumerable are the Presidents of this kind found among Historians to which might be added that of Famous or rather Infamous Remark touching Charls Martell King of France cujus animam says Tritemius visam deportari od Inferos quod multas Ecclesias spoliasset dum bellis inimicos persequeretur Tritem in Breviar Hist Franc. in fin 6. Touching Sacriledge as diversified in respect of Persons Places and other things Sacred the Canonists enumerate such kinds thereof as would seem very uncouth and strange for us to hear of in this Kingdom as the Constitution of the Ecclesiastical State thereof is now most Protestantly established they are therefore here purposely omitted The Penalties likewise inflicted on Sacrilegious persons vary according to Circumstances and as the kinds or degrets of the Sacriledge are and herein the Canon and the Civil Law have provided very different penalties which at the Canon Law are of one kind and at the Civil Law of another But according to the ancient Ecclesiastical Constitutions of this Realm Sacriledge of what kind soever regularly incurr's the penalty of Excommunication which admitts also of distinctions For as there is the greater and the lesser Excommunication so there is Excommunication ipso facto in Contradistinction to that which is only ipso jure also the Law even in this point
of Sacriledge doth distinguish between Excommunication latam and ferendam for if it be Sacriledge committed against an Ecclesiastical Person then according to the Canon Law and as heretofore practised in this Realm the penalty was Excommunicatio lata but when it is in respect of some things pertaining to the Church in that case the Punishment was Excommunicatio ferenda Lindw de immun Eccl. c. 1. glo in ver omnibus poenis And sometimes a pecuniary punishment was inflicted for Sacriledge 17. q. 4. c. quisquis c. si quis contumax The Ecclesiastical Law doth not punish Sacriledge with that austerity and severity as the Civil Law doth l. Sacrilegio ff ad Leg. Jul. peculat whereby the punishment sometimes is Damnatio ad bestias sometimes the Sacrilegious person is burnt alive sometimes hung on Fonk sometimes condemned to the Mines sometimes banished and sometimes sentenced to death in the ordinary way of Execution He that is guilty of Sacriledge against an Ecclesiastical person is by the Canon Law excommunicatus ipso facto 17. q. 4. c. si quis suadente But if it be in rebus Ecclesiae he is by that Law Excommunicandus de Foro compet c. conquestus If it be committed in the Church and that by firing or breaking it open in that Case the Sacrilegious person is ipso jure excommunicated de sent Excom c. conquesti If it be without burning or breaking it open as when a thing being left in the Church is taken away in that Case he ought to be excommunicated De furtib c. fin And this says Lindwood may stand as a rule in Law that wherever you find that regularly the Sacrilegious person is not ipso jure excommunicated majori Excommunicatione it hath these several Fallentias that is it doth not hold in case of Burning violating spoiling and wasting of the Church nor in burning or breaking open the Church door nor in Sacriledge against an Ecclesiastical person nor in case of striking or violently apprehending any man in the Church nor in any forcible or violent taking away any thing out of the Church nor in any that were excommunicated before for the like Offence nor in such as pull down or demolish the Body of the Church or any part thereof and the like Lindw de immu Eccl. c. ut invadentib glo in ver Excomunicati All which is likewiseexpresly set down in John de Athon's Gloss on Cardinal Othobon's Constitutions de abstrahentib Confug ad Eccles c. ad tutelam glo in ver Obsevari and seems to have an adequate affinity with what Solomon who as in other things so specially in matters of the Temple had the best experience says It is a suare to the man who devoureth that which is Holy Pro. 20. 25. 7. The dreadful Curse denounced against Sacrilegious persons appears in that remarkable passage in Parliament above Four hundred years since where the Priviledges of the Clergy and Franchises of the Church were with the Liberties of the People granted confirmed and settled by the King in full Parliament Anno 1253. in such a solemn manner as no History can parallel The King stood up with his Hand upon his Breast all the Lords Spiritual and Temporal stood with burning Tapers in their Hands the Archbishop pronounceth as followeth viz. By the Authority of God Omnipotent of the Son and of the Holy Ghost c. We Excommunicate Anathematize and sequester from our Holy Mother the Church all those who henceforth knowingly and maliciously deprive and spoil Churches of their right and all those that shall by any art or wit rashly violate diminish or alter secretly or openly in Deed Word or Counsel those Ecclesiastical Liberties c. Granted by our Lord the King to the Archbishops Bishops Prelates c. For everlasting memory whereof we have hereunto put our Seal After which all throwing down their Tapers extinguish'd and smoaking they all said So let all that shall go against this Curse be extinct and stink in Hell And Ethelwolphus the second sole Monarch among the Saxon on Kings having by advice of his Nobles granted for ever to God and the Church both the Tithe of all Goods and the tenth part of all the Lands of England free from all secular Service Taxes or Impositions whatsover concludes the said Grant or Charter of Donation in these words viz. Qui augere voluerit nostram Donationem augeat Omnipotens Deus dies ejus prosperos si quis vero mutare vel minuere praesumpserit noscat se ad Tribunal Christi rationem redditurum 8. Dr. Heylyn in his Ecclesia Restaurata relates a remarkable passage touching a sad Judgment that in the time of Queen Mary befell Buckly Bishop of Bangor An. 1541. for the Sacrilegious havock he made of the Lands and Patrimony of that Church who not content to alienate the Lands and weaken the Estate thereof resolved to rob it also of its Bells for fear perhaps of having any knell rung out at the Churches Funeral and not content to sell the Bells which were five in number he would needs satisfie himself with seeing them conveyed on Shipboard and had scarce given himself that satisfaction but was immediately struck blind and so continued from that time to the day of his death CHAP. XXXIX Of Simony 1. The Definition and description of Simony the penalties thereof 2. The difference between Simoniacus and Simoniace Promotus the latitude of that word Simony 3. How the anuual value of the Benefice is computable upon the Forfeiture by reason of Simony 4. Whether a Clerk Simoniacally presented but not privy to the Simony be disabled for that turn to be presented by the King to the same Church 5. The diversifications of Simoniacal Contracts or the various ways of committing Simony 6. An Obligation to present one upon condition of resignation may not be Simony 7. To promise one a Sum of Money to bestow his endeavour to procure one to be presented to a Benefice is a Simoniacal Contract 8. Several ways of contracting obliging and agreeing which will amount to Simony 9. A Clerk may oblige to his Patron to pay a Sum yearly and yet no Simony 10. The Plea of Simony is a good Barr to the Parsons demand of Tithes 11. Whether the Fathers free Covenant with his Son in Law upon the Marriage of his Daughter to present him to such a Living when it falls be Simony 12. Whether a SimoniacalVsurper shall prejudice the rightful Patron by giving the King the presentation 13. Whether an Incumbent that is in by Simony may after a General Pardon be removed 14. The grand Case of Calvert and Kitching at the Common Law touching Simony 15. To convey a corrupt gift by an innocent hand will not excuse it from being Simony 16. The Kings Case against the Archbishop of Canterbury Sir John Hall and Richard Clark touching Simony 17. The Proof of Simony in a Parson is good to harr him of Tithes 18. A Patrons Presentation upon
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.
Men which belong to the Blessed Hill They abstained from things that have life and some of them from Marriage One Dosithens a Samaritan is supposed to be the first Founder of the Samaritam Heresies and the first among them that rejected the Prophets as not having spoken by the Holy Ghost There were four sects of Samaritan Hereticks according to Epiphanius each of them holding their different Heresies in some respects and having in other respects certain Heretical Tenents common to them all By all which premisses it is most evident that the Prince of Darkness and the Father of Lyes hath had in all Ages Nations and Churches his Emissaries to infect them with Heretical and Blasphemous Erros but the Gates or Power of Hell to this day never could nor to Eternity ever shall prevail against the Truth CHAP. XLI Of Councils Synods and Convocations 1. The several kinds of Councils and Synods 2. What Canons in force in the Realm of Primo Ed. 6. Also how the Canons entituled Reformatio Legum Ecclesiasticarum became abortive 3. That part of the Canon Law is part of the Law of England 4. Convocation in England what how and by what Authority and for what ends conven'd also of what Members it doth consist with the Authority thereof 5. Convocations and Provincial Synods of very great Antiquity in England have been ever call'd by the Kings Writ their Priviledges 6. The Canons and Ecclesiastical Constitutions may not be repugnant either to the Kings Prerogative or to the Laws Statutes or Customes of this Realm 7. Lindwood's Method of Provincial Synods in this Realm and under what Archbishops 8. The four several kinds of Councils and Synods in general 9. A compendious Catalogue thereof when and where held by and under whom conven'd with the principal matters therein treated and determined 1. OF Councils or Synods there are four kinds viz. 1 Oecumenical as being called out divers Nations 2 National as out of divers Provinces both these kinds of Councils or Synods were ever assembled by Imperial Regal or Papal Authority 3 Provincial as out of divers Dioceses conven'd by Metropolitans or Patriarchs 4 Diocesan as out of one Diocese onely assembled by the Bishop thereof The frequent celebration of Synods the Council of Basil calls praecipuam agri Domini culturam Touching Synods vid. Duar. de Sacr. Eccl. minist et benefic 2. In the Reign of King Hen. 8. the Bishops and Clergy in the Convocation an 1532. oblig'd themselves neither to make nor execute any Canons or Constitutions Ecclesiastical but as they were thereto enabled by the Kings Authority it was by them desired by him assented unto and confirm'd in Parliament that all such Canons and Constitutions Synodal and Provincial as were before in use and neither repugnant to the word of God the Kings prerogative Royal or the known Laws of the Land should remain in force until a Review thereof were made by 30 persons of the Kings appointment which Review not having been made from that time to the first year of King Edward 6. All the said old Canons and Constitutions so restrained and qualified did then still remain in force as before they were For this consult the Act of Parliament of 25 H. 8. c. 1. And in the Third year of the said King Edward 6. there passed an Act in Parliament For enabling the King to nominate Eight Bishops and as many Temporal Lords and Sixteen Members of the Lower House of Parliament for Reviewing of such Canons and Constitutions as remained in force by virtue of the Statute made in the 25th year of King H. 8. and fitting them for the use of the Church in all times succeeding According to which Act the King directed a Commission to Archbishop Cranmer and the rest of the Persons whom he thought fit to nominate to that employment and afterwards appointed a Sub-Committee of Eight persons to prepare the Work and make it ready for the rest that it might be dispatch'd with the more expedition which said Eight persons were the Archbishop of Canterbury Dr. Goodrick Bishop of Ely Dr. Cox the Kings Almoner Peter Martyr Dr. in Divinity William May and Rowland Taylor Drs. of Laws John Lucas and Richard Goodrick Esquires by whom the Work was undertaken and digested fashioned according to the method of the Roman Decretals and called by the name of Reformatio Legum Ecclesiasticarum c But not being Commissionated hereunto till the Eleventh of November in the year 1551. they either wanted time to Communicate to the chief Commissioners by whom it was to be presented to the King or found the King encumber'd with more weighty Affairs than to attend the perusal thereof And so the King dying before he had given life unto it by his Royal Assent and Signiture the design miscarried and never since thought fit to be resumed in the following Times by any of those who have had the Government of the Church or were concerned in the honour and safety thereof 3. It is asserted by good Authority That if the Canon Law be made part of the Law of this Realm then it is as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land Likewise in the Case of Shute against Higden touching Voidance of a Former Benefice by being Admitted and Instituted into a Second and that by the Ancient Canon Law received in this Kingdom This says the same Authority is the Law of the Kingdom in such cases And in the Case of Hill against Good the same Author doth further assert That a Lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else is so for what is Law doth not suscipere magis minus Which Premisses though they may seem yet are not inconsistent with what Sr. Ed. Coke says viz. That the Laws of England are not derived from any Forein Law either Canon Civil or other but a special Law appropriated to this Kingdom That it may be said of its Law as of its situation Et penitus toto divisos Orbo Britannos 4 Convocation is the highest Ecclesiastical Court or Assembly called and convened in time of Parliament by the Kings Writ directed to the Archbishops consisting of all the Clergy of both Provinces either Personally or Representatively present in the Upper House of the Archbishops and Bishops and the Lower House of the other Clergy or their Proctors chosen and appointed to appear for Cathedral or other Collegiate Churches and for the Common Clergy of every Diocess with a Prolocutor of each House and President of the Convocation for the Province of Canterbury to consult of matters Ecclesiastical and thereon to Treat Agree Consent and Conclude as occasion requires on certain Constitutions and Canons Ecclesiastical to be ratified and confirmed by the Royal Assent They were Anciently called
Clergy At Braga or Bracara in Portugal An. 610. under the Reign of Gundemarus King of Gethes assembled some Bishops of Gallicia Lusitania and of the Province of Lucensis whereby it was Ordained That every Bishop should visit the Churches of his Diocess That they should receive no Rewards for Ordination of the Clergy And that a Church builded for Gain and Contribution of the People redounding to the advantage of the Builder should not be Consecrated At Auxerre in France An. 613. assembled a number of Abbots and Presbyters with one Bishop and three Deacons In this Synod they damned Sorcery made many Superstitious Constitutions as touching Masses Burials Marriages Prohibition of Meats c. At Hispalis commonly called Civil La grand in Spain in the year 634. and in the 24 th year of the Emperour Heraclius a Council was assembled by Isidorus Bishop of Hispalis at the Command of King Sisebutus for suppression of the Heresie of ãâã ãâã ãâã ãâã ãâã a Branch of the Eutychian heresie and for the decision of some Questions touching the Bounds of their Dioceses At Toledo in Spain An. 639. under the Reign of Sisenandus King of Spain by the Kings Command were more than 70 Bishops and Presbyters Conven'd upon occasion of diversity of Ceremonies and Discipline in that Kingdom This was the Fourth Council at Toledo At Toledo in the First year of Chintilla King of the Gothes about the time of the Emperour Heraclions Reign a Fifth Council was held conven'd by Eugenius Bishop of Toledo In this Council nothing considerable was done but in reference to Annual Letanies and the appointment of Supplications for the King At Rome in the year 652. was a Council convened by Martinus Pope consisting of more than 100 Bishops occasioned by the Error of the Monothelites obstinately maintained by Paulus of Constantinople and countenanced by the impious Edict of the Emperour Constans The Constitutions and Decrees made in this Council tended to condemn those that denied the Trinity the Divine Unity in the Divine Nature the Manifestation of the Second Person of the Trinity and his Sufferings in the Flesh At Toledo in the year 653. a Sixth Council was held consisting of Fifty two Bishops whereof Eugenius Bishop of Toledo was President The occasion whereof was the Renovation of Old Heresies and Contradiction to precedent Councils The Fourth Canon of this Council is against Simony and the Eighteenth is against Rebellion At Toledo in the year 662. a Seventh Council is held of 4 Archbishops 50 Bishops and many Presbyters The First Canon of this Council is against Sedition and Treason By the Fourth Canon it is forbidden That Bishops in their Visitations should extort or oppress their Churches At Quinisext so termed by Balsemon the same year viz. 662. was held a Council which by Bede and many others is accounted an Erroneous Synod it was convened under Justinian the Second and Pope Sergius wherein the Fathers thought fit to supply the defect of the Fifth aud Sixth precedent Synods in reference to manners and Ecclesiastical Discipline for which reason they ratified 102 Canons in the Trullo of the Imperial Palace whence they are called Trullans These are rejected by such Latins whose consent went not to the stablishment thereof specially not empowr'd and authoriz'd thereto by the Pope In the 36 th Canon thereof the Patriarch of Constantinople is equalled to the Roman and in the 13 th Canon Matrimony is granted to the Clergy At Chalon in Burgandy by the Command of Clodoveus K. of France a Council of 44 Bishops assembled wherein the Canons of the Nicene Council had great approbation And it was Forbidden That Two Bishops should be Ordained in one City and Decreed That no Secular work should be done on the Lords Day At Rome in the time of Constantinus Pogonatus Emperour under the Popedom of Agatho was held a Council wherein it was Declared by the Suffrages of 125 Bishops That Two wills and Two operations were to be acknowledged in Christ and the Defenders of the Heresie of the Monothelites were condemned At Toledo in the year 671. an Eighth Council of 52 Bishops was assembled wherein were high Debates concerning Perjury At last it was Resolved That no Necessity obligeth a man to perform an unlawful Oath In this Council Marriage was utterly forbidden to Bishops and eating of Flesh in Lent At Toledo in the year 673. and in the Seventh year of Recesuvindus King of Gothes and by his Command were convened 16 Bishops which was the Ninth Council at that place and in which several Canons were made touching the Discipline of the Church At Toledo in the Eighth year of the said Kings Reign was the Tenth Council consisting of 21 Bishops who made some Decrees touching certain Festivals and others relating to the Clergy and removed Protamius Bishop of Bracara from his Office being convict of Adultery At Toledo in the Seventh year of Bamba King of Gothes 19 Bishops and Seven Abbots were assembled by the Kings Command wherein several Canons were made concerning Ecclesiastical Discipline At Bracara a Second Council was held the first according to Caranza wherein many old Opinions of the Priscilianists and Manichaeans concerning Prohibition of Marriage and Meats are condemned together with the Heresies of Samosatenus Photinus Cerdon and Marcion And in the 30 th Canon of this Council it was Ordained That no Poesie should be Sung in the Church except the Psalter of the Old Testament At Bracara in Spain in the time of Bombas King of Gothes another Synod of Eight Bishops was assembled wherein the Nicene Faith is again rehearsed In the Fifth Canon of this Synod it is Ordained That upon Festival days Reliques enclosed in an Ark shall be born on the Shoulders of the Levites as the Ark of God in the Old Testament was accustomed to be born At Constantinople in the year 680. in the Twelfth year of the Reign of Constantine Pogonatus a General Council was held Pope Agatho procuring it by his Legates In this Council were convened 150 Bishops they who reckon 270 or 286 do compute the Absent Romans and others consenting thereto the Emperour himself was President In this Council was discussed the Question touching the Wills and Actions of Christ Here were condemned the Monothelites Sergius Cyrus Pyrrhus Peter Paul Theodorus together with Pope Honorius who in the defence of Eutychianism pleaded that there was one only Will in Christ This Council confirmed the Canons not only of General but also of Particular foregoing Synods as of Antioch Laodicea and others It also added what was to be approved in the Orthodox Writings of the Fathers as appears by the Second Canon of this Council Vid. Paul Diacon in vit Constant At Toledo the Twelfth Council consisting of 33 Bishops with some Abbots and 13 of the Nobility assembled the first year of the Reign of Euringius to whom Bombas King of
the Gothes resigned his Royal Authority chusing rather to be Shaven than to wear a Crown and to enter into a Monastery than to fit on the Throne of Majesty This Council as to the Confession of Faith adhered to the Council of Nice and confirmed the Acts made in precedent Councils against the Jews Other Councils there were at Toledo under the Reigns of Euringius and Egista but not of such Remark as needs any apology for their omission At London in the year 712. under the Saxons Reign a Council was assembled at which the Popes Legate Bonifacius and the chief Prelate of England Brithwaldus was present The two grand Points treated in this Council were concerning the Worshipping of Images and Prohibiting Marriage to persons in Spiritual Orders At Constantinople about the same year of 712. a Council was called by the Emperour Philippicus for the undoing or the Sixth General Council wherein the Error of the Monothelites was condemned At Rome in the year 714. a Council was Assembled by Pope Gregory the Second whereat two Bishops of Britain were present Sedulius and Fergustus Most of the Canons made at this Council did concern Marriage Masses Sârceries and the Mandates of the Apostolick Chair At Rome a great Council of 903 Bishops was assembled by Pope Gregory the Third having received a Mandate from the Emperour Leo for the Abolishing of Images In this Council was the Emperour Leo Excommunicated and deprived of his Imperial Dignity because he had disallowed the Worshipping of Images Now is the Popes Banner displaied against the Emperour which is the Forerunner of that Enmity which ensued between the Pope and the Emperours In France in the year 742. under the Reign of Charles the Great Zacharias the First being then Pope a National Council of the Bishops Presbyters and Clergy of France was assembled by Bonifacius Archbishop of Mentz according to the Mandate of King Charles This Council was called for Reformation of Abuses in that Countrey or rather to reduce it to a conformity unto the Rites of the Roman Church At Constantinople in the year 755. and the Thirteenth year of the Emperour Constantinus Copronymus a General Council of 338 Bishops was Assembled by the Emperours Command In this Council the Worshipping of Images was damned and the placing of them in Oratories and Temples as a Custome borrowed from the Pagans was forbidden yet in the 15 th and 17 th Canons of this Council the Invocation of Saints is allowed The Council of Constantinople is by some accounted two which others contract into one but the distinction it seems is manifest because the first is said to be celebrated under Father Leo Isaurus An. 730. The Second by Constantius Copronymus in the year 755 as aforesaid The one opposeth the Worshipping of Images and Reliques on which account both may be esteemed as one or at least united The first under Leo discovers Intercession of Saints to be imaginary and the Worshipping of Images meer Idolatry Germanus Patriarch of Constantinople and John Damascene and others too much inclined to Images are deprived of their Dignities Gregory the Third intercedes for Images in a Roman Anti-Synod in which he Excommunicated the Eastern with the mark of Heretical Image-breakers but this did not terrifie the said Constantine Copronymus from declaring himself to be an Image-breaker but assembled 338 Bishops at Constantinople as aforesaid over whom himself was President and persecuted the Maintainers of Images Some will have This and the Seventh Council as Occumenical but the Romans so abhorr'd it that for this Controversie about Images they denied their Subjection to the Greek Emperours whenc afterwards ensued the Western and Eastern Division never to be reconciled How well the Nicene Council corrected the Errors of this appears by the Decrees thereof At Francfurt in the year 794. a Council was convened but it is not agreed whether it was an Occumenical or Provincial Council the more Ancient Writers will have it to be Oecumenical because it was called by Charles the Great and Adrian the First and it consisted of at least 300 Bishops yet the latter Writers will have it Provincial because it seems not to favour Images The Reason of the convening of this Council was because Elipardus Archbishop of Toledo and Felix Vrgelitanus Bishop of Aurelia or Orleance in France preached That Christ was only the Adopted Son of God which Aquinas refutes 3. part q. 23. art 4. But Binius with Longus and others will have it that this Council or Synod confirmed the Opinion of the 2 d Nicene Council concerning the Adoration of Images which Bellarmine will not believe though he wishes it to be true At Nice in Bythinia in the year 788. a Council of 350 Bishops was assembled in which it was Ordained That the Image of Christ the Blessed Virgin Mary and of the Saints should not only be received into places of Adoration but also should be adored and worshipped At Frankford in the year 794. a great Council was assembled by Charles the Great King of France partly by reason of the Heretick Felix who called Christ the Adopted Son of God in his Humane Nature and was condemned in a Council at Ratisbone An. 742. partly also by reason of great Disputes that were in most places concerning the Worshipping of Images disallowed in the Council of Constantinople but allowed in the Second Council of Nice At Mentz in the year 813. by the Command of Carolus Magnus was Assembled a Council of 30 Bishops 25 Abbots with a great number of Priests Monks Counts and Judges about Reformation of the dissolute manners of Ecclesiastical and Lay-persons At Rhemes in the same year 813. a Council was Assembled by the Command of Charles the Great who not only called that Famous Council of Frankford An. 794. in which the Adoration of Images was condemned but also about one and the same time viz. An. 813. appointed Five National Councils to be convened in divers places for Reformation of the Clergy and Laity viz. at Mentz aforesaid this at Rhemes another at Tours a Fourth at Chalons and a Fifth at Aries In all which no opposition was made to the foresaid Council of Frankford nor was the Adoration of Images avowed in any of these Councils At Tours An. 813. at the Command as aforesaid of the Emperour Carolus Magnus a Council of many Bishops and Abbots was assembled for the Establishing of Ecclesiastical Discipline in Tours At Chalons An. 813. was the Fourth Council convened the same year under Charles the Great and by his Command for the Reformation of the Ecclesiastical state the Canons whereof for the most part are consonant to those made in the said former Councils under Charles the Great At Arles the same year of 813. wherein the Four preceding Councils were held another was convened by Command of Charles the Great wherein as to matters of Faith Church-Discipline Regulation of
into the Church albeit Divine Service be not then celebrating unless it be to hear the word preached which being ended he is immediately to depart or stand at the Church-door in the time of Divine Service and hearing the same albeit he go not within the Church it self or thrust himself into the company of others when it is in his power to avoid it or lastly when he continues too long secure under such Sentence of Excommunication without repentance whereby the Law concludes him so manacled by his obstinacy as no Spiritual Physick can have any operation upon him And although regularly the Return of such a one is to be expected usque ad annum yet in this Kingdom quoad incovationem Brachii Secularis it is sufficient if Forty daies be expired after his Excommunication Ibid. c. 1. authoritate glos in verb. Contemnentes And whereas we often in the Law meet with certain Cases of Offences incurring the Sentence of Excommunication ipso facto that is as aforesaid nullo hominis ministerio interveniente Requiritur tamen even in that case Sententia Declaratoria C. cum secund Leges de Haeret. li. 6. Lindw de Foro Comp. c. 1. glos in verb. ipso facto 8. It is therefore not impertinent here to insert what principally those Offences are on the Guilty whereof the Law doth inflict this Excommunication ipso facto Lindwood tells us that there are found among the Canons and Constitutions Provincial these Cases following wherein Excommunication ipso facto is incurr'd viz. 1 A wilful and malicious impeding the execution of the Canon against Incontinency specially in Ecclesiasticks as to Concubines 2 A clandestine and surreptitious Proceeding at Law even to the Writ of Banishment against an innocent person and ignorant of the Proceedings 3 Bigamy 4 False Accusing of any Innocent Clergy-man before a Temporal Judge whereby he happens to suffer under the Secular Power 5 A laying Snares to entrap any in holy Orders whereby afterwards to charge them falsly before the Secular Powers with Crimes whereof they were not guilty 6 A violation of lawful Sequestrations made by the Bishops their Vicars general or principal Officials 7 The exercise of Ecclesiastical Jurisdiction by any Clerk married or by any Lay-person in matters only and properly pertaining to the Cognizance of the Church 8 Disobedience to the Gregorian Constitution forbidding the holding of Two Benefices Incompatible cum Cura animarum without a Dispensation 9 A procuring to be Presented to a Benefice that is already full of an Incumbent by virtue of the Writs of Quare non admisit or Quare impedit or the like 10 Abettors and Advisors of any to fraudulent Conveyances or Deeds of Gift in fraudem Ecclesiae Regis Creditorum aut haeredum 11 All such as hinder any of what quality soever that are legally Testable from making their last Wills and Testaments or afterwards do unjustly obstruct the due execution of the same 12 All such as hinder the devotion of the people in making their Offerings and paying their Tithes converting them to their own use 13 All such as deny the gathering of the Tithes of any Fruit or molest and hinder the Collectors thereof 14 All Lay-persons who usurp upon such Oblations and Offerings as are due and appertain only to Ecclesiastical persons without their assent and the assent of the Bishop 15 Sacrilegious persons and all such as invade the just Rights Liberties or Revenues of the Church or otherwise unjustly possess themselves de bonis Ecclesiasticis 16 All Bayliffs and other Officers that unjustly enter upon the Goods of the Church or unduly exact from the same or commit Waste upon any the Revenues of a Church vacant 17 All Oppugners of Episcopal Authority or that resist and oppose the exercise of Ecclesiastical Jurisdiction and all such as disswade others from their due Obedience thereunto 18 All such as being imprisoned for their Contempt to some Ecclesiastical Sentence are thence set at liberty contrary to the Liberties and Customes of the Church of England being Excommunicate persons when they were first apprehended 19 All such as violently usurp upon the propriety of such Trees and Fruits as grow in the Church-yards rooting them up or felling them down or mowing down the Grass thereof contrary to the will and without the consent of the Rector or Vicar of any Church or Chappel or their Tenants 20 All such as should non ritè solemnize Prohibited Marriages that is such as have any Canonical Impediment 21 All such as contrary to the true Catholick sense shall assert any thing or lay down positions or make propositions sauouring of Heresie publickly in the Schools 22 All such as in their Preaching or otherwise shall violate the Canon that enjoyns a due examination and approbation of persons before they are admitted to Preach the Word of God 23 All such as touching the Sacraments assert any thing beside or contrary to the determination of the Church or call such things into doubt publickly as are defined and stated by the Church 24 All such as in the Universities do after a premonition to the contrary hold any Opinions or assert any Doctrines Propositions or Conclusions touching the Catholick Faith or good manners of an ill tendency contrary to the determination of the Church 25 All such Clerks as without Ecclesiastical Authority shall of themselves or by any Lay-power intrude themselves into the possession of any Parochial Church or other Ecclesiastical Living having Curam animarum These Cases and some others now not of use in this Realm are enumerated by Lindwood Lindw de Sententia Excom c. ult gloss in verb. Candelis accensis But there are very many other Cases in the Canon Law that fall under this Excommunication ipso facto by which in the Law is ever understood the Major Excommunicatio and was wont to be published and denounced in the Church Four solemn daies in every year when the Congregation was likeliest to be most full and that in Majorem terrorem 9. The Causes of Excommunication ipso facto according to the Constitutions and Canons Ecclesiastical of the Church of England now in force are such as these viz. 1 Impugners of the Kings Supremacy 2 Affirmers of the Church of England as now established to be not a true and Apostolical Church 3 Impugners of the Publick Worship of God establish'd in the Church 4 Impugners of the Articles of Religion establish'd in the Church of England 5 Impugners of the Rites and Ceremonies established in the Church of England 6 Impugners of the Government of the Church by Archbishops Bishops c. 7 Impugners of the Form of making and Consecrating Archbishops Bishops c. in the Church of England 8 Authors of Schisms in the Church 9 Maintainers of Schismaticks Conventicles and Constitutions made in Conventicles Likewise by the said Canons the Ecclesiastical Censure of Excommunication is incurr'd by all such Ministers as Revolt from the Articles unto which they subscribed at their
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
which he hath such right of presentation he may at his own Suit have this Writ of Ne admittas directed to the Bishop forbidding him to collate or admit any to that Church during the time aforesaid 5. Vi Laica Removenda is a Writ which upon the Bishops Certificate into Chancery of a force and resistance touching a Church lieth where a Debate or Controversie is between two Parsons for a Church the one whereof doth enter into the Church with a strong hand and great power of the Laity holding the other out and keeping possession thereof vi armis whereupon he that is so held out of possession may have the said Writ directed to the Sheriff of the County to remove the force within that Church and if need be to raise the Posse Comitatus to his assistance and to Arrest and Imprison the persons that make resistance so as to have their Bodies before the King at a certain day to answer the contempt which Writ is ever made returnable and is sometimes grantable without the Bishops Certificate as aforesaid for it may it seems be had upon a surmise made thereof by the Incumbent himself without such Certificate there being a distinct and several form thereof in each of the said Cases So that this Writ properly lieth for the removal of any forcible possession of a Church kept by Lay-men 6. Indicavit is a Writ in the nature of a Prohibition issuing out of the Kings Temporal to his Ecclesiastical Courts and lieth for the Patron of a Church whose Clerk is Defendant in some Spiritual Court in an Action of Tithes commenced against him by another Clerk and extending to the value of the fourth part of the Church or of the Tithes belonging thereunto for in this Case the cognizance thereof belongs to the Kings Temporal Courts by the Stat. of Westm 2. c. 5. wherefore the Defendants Patron being like to be prejudiced thereby in his Church and Advowson in case the Plaintiff should prevail and obtain in the Spiritual Court So that this Writ lieth properly where there is a contest or Controversie between two Clerks in an Ecclesiastical Court of a Church or part thereof for Dismes or Tithes amounting at the least to the value of the fourth part of the Church In which regard the Patron of the Clerk Defendant losing his Advowson in case the Plaintiff should recover in the Spiritual Court shall have this Writ directed to the Clerk Plaintiff or to the Officers of the Ecclesiastical Court commanding them to cease their proceedings until it be discust and decided in the Temporal Court to whom the cognizance of the Advowson belongs This Writ shall be between four persons whereof two are Patrons and two are Clerks and is not returnable as other Writs but if they cease not their Suit and proceedings in the Ecclesiastical Court an Attachment issues 7. Advocatione Decimarum is a Writ that lieth for the claim of the fourth part or upwards of the Tithes that do belong to any Church 8. Admittendo Clerico is a Writ granted to him who hath recovered his right of presentation against the Bishop in the Common Pleas 9. Beneficio Primo Ecclesiastico habendo is a Writ directed from the King to the Lord Chancellor to bestow the Benefice that shall first fall in the Kings gift above or under such a value upon this or that person 10. Cautione admittenda is a Writ that doth lie against a Bishop who holdeth and detaineth an Excommunicate Person in Prison notwithwanding he offers sufficient Caution or Assurance to observe and obey the Orders and Commandments of Holy Church from thenceforth The form and further effect of which Writ vid. Reg. 11. Clerico infra sacros ordines constituto non eligendo in officium is a Writ directed to the Bayliffs c. that have imposed a Bailywick or Beadleship upon one in Holy Orders charging him to release him thereof 12. Clerico capto per Statutum Mercatorum c. is the delivery of a Clerk out of Prison who is imprisoned upon the Breach of the Statute Merchant 13. Clerico convicto commisso Goalae in defectu Ordinarii deliberando is a Writ for the delivery of a Clerk to his Ordinary that was formerly convict of Felony by reason his Ordinary did not challenge him according to the Priviledges of Clerks 14. Annua Pensione is a Writ now grown obsolete and out of use For whereas anciently there were certain Abbies and Priories that in respect of their Foundation or Creation were obliged unto an Annual Pension due unto the King for such his Chaplains unprovided of a sufficient Living as he should nominate and appoint This Writ in pursuance thereof was wont to issue to such Abbot or Prior in favour of such whose name was comprised in the said Writ until c. requiring the said Abbot or Prior that for his said Chaplains better assurance he give his Letters Patents for the same 15 Vicario deliberando occasione cujusdam Recognitionis c. is a Writ that lieth for a Spiritual person imprisoned upon forfeiture of a Recognizance without the Kings Writ For as there is one Form of the Writ Statuto Mercatorio for the imprisoning of him who hath forfeited his Bond called the Statute Merchant until the Debt satisfied as to Lay persons So there is another Form of the said Writ as against Ecclesiastical Persons 16. Touching the three Writs viz. De Excommunicato capiendo Excommunicato deliberando Excommunicato recipiendo vid. sup in cap. de Excommunicatione 16. The Village of St. Andrews brought a Quare Impedit against the Archbishop of York and Countess of Strewsbury and after brought an Assize of Darrein Presentment for the same Church The Quare Impedit is returned It was said by the Court that the Assize of Darrein c. shall abate vid. by Hobard But if he had brought another Quare Impedit it had been well And so it was resolved in the Earl of Bedfords Case and by Hutton that the Statute of W. 2. cap. 5. proves it viz. Quod habeant Ass c. vel Quare Imp. but not both vid. 8 E. 3. 17. 18. In a Quare Impedit the Incumbent pleads that before the Action brought he had been in by the space of six months c. of the presentment of S. S. in the Church This difference was taken by Serjeant Henden and agreed by the Court when the Incumbent pleads the presentment of a Stranger there he ought to shew That the Stranger had a Title and that he was seised of the Advowson c. or that he was seised of a Mannor to which c. But where he pleads that he was in for Six months of the Presentment of the Plaintiff himself or by collation by lapse by the Ordinary there he need not make any Title 10. E. 11. 19. If a man recovers in a Quare Impedit against an
Presentation Examination Admission Avoidance Rebuff Prax. Benef. de Regia ad Praelatur nominat fac §. Monasteriis Plurality âo âius de Just Jure Deprivation Residence Abbots and Abbies a Cestrens Polychron l. 4. c. 31. b Bed Eccl. Hist lib. 2. c. 2. c Hist Angl. Scrip. Antiq. col 847. d Ibid. col 837. Quam varia sint gemotorum genera vid. Equit. Doct. in suo Glossario Annates or First-Fruits Anon. Hist of the Church of Great Britain p. 80. An Obit was at 40 s. in St. Pauls London yet at Waltham Abbey but at 2 s. 2 d. received by the Church-wardens Altarage Hist Angl. Scrip. Antiq. col 1882 1883. Full. ch Hist lib. 6. p. 352. Tithes Daeis pro Danis Lashlite h. e. Muleta quinque Marcaruma Wita j.e. Mulcta 30 Solidorum Secundum Glossar Hist Angle Seriptores Decem. * P. Adrian 4. was an English man and had been a Benedictine Monk of St. Albans â Vid. Alex. 4. in 6. de dec c. 2. Statuto Innoc. 8. To. 2. p. 4. 10. Edit Colon. * Vid Ingulph Malmesb. Gest Reg. lib. 2. cap. 2. Mortuaries Vid. Less de ma. acq dom lib. 2. c. 5. Dub. 7. nu 38. Banns Adultery In Spain it is lawful for a man to kill his Wife or his Daughter taken by him in Adultery Dr. Taylor Wera h. e. pretium Nativitatis hominis Bastardy Divorce In Matth. 19. Caus 32. q. 1. c. Sicut Vid. Dr. Taylor Cases of Consc lib. 1. c. 5. nu 9. Trent Concil lib. 8. 1563. Father Soto Concil Trent lib. 7. Defamation Prov. 22. 1. Sacriledge An. ââ4 Ex M S. in Colleg C. C. Cant. Chron. ãâã Simony Blasphemy Joh. 8. 44. Joh. 10. 20. 2 Pet. 2. 1. 3. 16. Matth. 11. 19. Levit. 24. Heresie Councils * If by certain Fathers of the Church are here meant any of the Popes observe what B. Taylor says It is no trifling Consideration says he that the Body of the Canon Law was made by the worst and most Ambitious Popes Alexander the Third who made Gracians Decree to become Law was a Schismatical Pope an Antipope and unduly Elected The rest were Gregory 9. Boniface 8. Clement 5. John 22. persons Ambitious and Traytors to their Princes B. Taylor 's Casee of Conscience lib. 3. cap. 4. nu 4. fol. 647. Anonym The Hist of the Church of Great Britain Lib. 4. c. 5. Spelm. Concil â Spelm. An. 605. pag. 118. Dr. Tayl. Cas of Conscience lib. 3. cap. 4. fol. 637. 2 Kin. 23. 16. Dr. Taylor in his Cases of Conscience lib. 3. cap. 4. fol. 617. nu 4. * Supposed to be William Middleton â Norwich An Example in one to stand as a President for all Jâ Qaint Hoed Repet in c. Novit De Judic nu 145. Vid. B. Spar. Collect. Edit 1675. a Co. Inst p. 4. c. 74. b Co. ibid. c Davis 1. Proxies 4. By vertue hereof were the Letters Patent of the High Commission-Court d Bract. de Leg. Consueâud Angl. e Leg. Eccl. Ed. Cânf a. 15. Spelm. Conc. f Spelm. ib. g 26 H. 8. 1. 1 El. 1. 5. El. 1. vid. Câ Instit p. 4. c. 74. h Ce. ubi sup de Com. ad Revid i Ce. ibid. Edit An. 1603. k Vid. Stat supradict l Colt and Glover against the Bishop of Coventây and Lichfield Hob. Rep. m Ibid. Concil Calchuth c. 8. Spelm. Can. 1. of the Synod held at London An. 1640. Circa An. 560. Never used to be held but by Sovereign permittance Hoveden n Speed 538 12. Roll. Abridg. verb. Preregative Lit. X. Vid. the Injunctions in Bishop Sparrows Collect. of Articles Bishop Sparrow's Collect. ubi supr p. 25. Art 37. Vid. Roll. Abr. ver Prerogativ Lit. G. 232. a 19 El. 40. 8. b 7 E. 3. Fitz. Q. Imp. 19. vid. 29 E. 3. 9. c 1 H. 7. 23. d 27 E. 3. 84. F. N. B. 34. f. e 11 H. 7. 12. f 19 E. 3. Fitz. Quare non admisit 7. vid. Stat. 25. E. 3. De Proviscribus g Vid. Preamble of the Stat. of 24 H. 8. c. 12. h 9 E. 4. 3. F. N. B. 44. h. i 3â Ass pl. 19. k Dr. Heylins Hist Eccl. Restaurat p. 10. Hactenus Dr. Heylin ubi supra p. 280 281 282. Dicuntur Patres propter honorâs eis exhibendes Anâ Brit. in pâin a Co. Inst par 4. cap. 77. in fin b Co. ibid. He is styled in the Kings Writs directed to him Dei gratia Aâchiepisc po Cânâuâriensi d Dr. Heyliâ Help to Hist verb. Canterâury e Co. Inst par 4. cap. 74 f Heylin ubi supra verb. York g Ibid. St. 35 El. c. 6. St. 3â H. 8. c. 10. Cassan de Consuet Burgund pag. 15. Co. Liât fo 109. b. Mich. 7 Rââ Rot. 1. h Capgâ Hist Landaâ i Malmsb. k Lelând in Assert Artur ââ 36. a. Malââb Ant. Brit. B. Godw. St. Davids in Wales Sp. fo 79. nu 18. An. 302. An. 306. An. 413. l Prosp Anasi Cild Polâd Euch. Hunt l. 3. m B. Godw. Bede l. 1. c. 15. Polych l. 5. Sp. n Bede l. 2. c. 23. Hunt l. 2. Jo. Dia. in vit Greg. leg 2. o Bede l. 1. c. 25. An. 596. An. 519. q Cambd. p Cambd. Bale ex Leland B. Godw. Antiq. Eâit f. 11. r Ant. ârit s Dr. James's Case Heb. Rep. t Case ibid. u Mich. 10. Jac. rot 2642. Colt and Glovâr vers Bp. of Covent and Lâcâfield Hob. Rep x Hestiens cap. Pastorallâ de Ofâicio Ordinariâ Vid. Case Jones vers Jones Hob. Rep. y Bald. Causâ 3. Q. 6. c. penult Ex Synod Rom. z Trin. 1â Car. B. R. inter Dodson Lynn a Intrat Tr. 11 Car. Rot 446. Rol. Abr. verb. Presenâment lit C. p. 357 lit Z. 367. b ârownl Rep. p. 2. Case Lynche vers âorter c Trin. 9 Jac. C. B. âones vers âoyer Brownl ibid. d Patriarcha was a chief Bishop over several Kingdoms or Provinces as an Archbishop is of sâveral Diocesses and had several Archbishops under him Bishop supposed from the Saxon word Biceop and that from the Greek ãâã ãâã ãâã ãâã ãâã Speculator vel Superintendens a Numb 3. 32. b Eusâb l 1. Hist Eccl. c Euseb ib. cap. 42. d Seld. Hist Tâbes c. 6. p. 3. fo 80. b. c. 9. p. 2. fo â53 e Phil. 1. 1. Acts 1. 21. f Westm 2. c. 19. 31 E. 3. c. 11. 22 H. 8. 5. Co. Lit. fo 344. g Vid. Brâ tit Ordinarius h Co. Inst p. 4. c. 74. vid. 20 H. 8. c. 20. k Ant. Brit. Aâgl fo 302. nu 30. l Co. p. 5. Cawdây's Case St. 1 Jac c. 3. 17 Ed. 3. 40. By delivery of a Ring with a Crosier or Pastoral Staff Roll Abr. ver Presentment Advowson 342. m 17 E. 3. 40. b. n Ibid. o Vid. Similiter 11 E. 1. Rot. Finium M. 5. for the Abbot of St. Augustine of Canterbury c. See it there at large p Matth. Par. Hist Mag.
51. Summoner what a description of his Office p. 86 87. § 12. What the Canon enjoyns concerning such ibid. What the ancient Canon is touching Summoners p. 88. § 13. A Case at Common Law against a Summoner p. ibid. Sect. 14. Superstitious Pictures in Church-windows whether they may be pulled down without Licence of the Ordinary p. 138. Sect. 5. Supremacy or the Kings Supremacy a description thereof p. 1. Sect. 1. Established by Statute Laws p. 2 3. Sect. 2. p. 7. Sect. 10. The Oath of Supremacy the original and occasion thereof p. 3 4. Sect. 3. The Impugners therof censured with Excommunication ipso facto p. 4. Sect. 6. Asserted by King Ed. 6. p. 7 8. Sect. 13. Also by Queen Eliz. p. 8. Sect. 14. Synods the several sorts and kinds thereof p. 584. Sect. 1. Vnder what Archbishops of Canterbury they have been anciently held here in England p. 590 591. Sect. 7. Synodale what when and to whom payable p. 67. Sect. 1. Whether it be due without the Act of Visiting p. 68. Sect. 2. p. 69. Sect. 4. Originally paid in Victualibus p. 68. Sect. 3. When and how changed into Money ibid. The divers significations of the word Synodale p. 71. Sect. 8. vid. Procurations Synodies or Synodal what the Ordinary's Right therein p. 34. Sect. 17. p. 73. Sect. 9. T. TARES cut green to feed Cattel whether Tithable p. 440. Tartarians their great Chastity they held Adultery Capital p. 471. Sect. 6. Tax for Church-Reparations by whom to be made p. 148. Sect. 20. p. 162. Sect. 4. Templars discharged of Tithes p. 402. Temporalties or Barony of a Bishop how obtained p. 27. Sect. 4. p. 28. Tenant in Common in what case the same person may be said to be Tenant in Common with himself p. 193. Sect. 16. Testis singularis whether sufficient proof for payment of Tithes p. 362. Sect. 22. vid. p. 378. Sect. 63. p. 430. Theanus Archbishop of London in the time of K. Lucius p. 17. Sect. 7. He was forced by the Infidel Hengist to fly into Cornwal and Wales p. ibid. Sect. 5. Theruma what it was p. 351. Sect. 4. Timber-Trees what shall be reputed such as not Tithable p. 441 442. If wasted on a Bishoprick it is Dilapidation p. 176 177. Sect. 8 9. Tithes What by and to whom payable when how of what things the manner of Right Tithing what the Setting forth thereof is according to the Statute and where cognizable p. 347. c. The several kinds of Tithes p. 349. Sect. 1. p. 351. Sect. 4. whence the word Tithes derived p. 347. Sect. 1. By whom the Church of England was therewith first endowed ibid. They are now at Common Law Temporal Inheritances p. 353. Sect. 6 7. Whether they may be leased or released without Deed p. 358. Sect. 11. p. 363. Sect. 27. Composition thereof for life whether good without Deed p. 372. Sect. 45. Whether so if but for one year or more p. 377. Sect. 61. p. 382. s 81. The Right of Tithes in contest between Parson and Vicar is properly cognizable in the Ecclesiastical Court p. 127. s 42. p. 369. Sect. 41. p. 380. Sect. 73. What Tithes are properly due to the Vicar p. 199. Sect. 8. Tithes not set forth Actions thereon p. 376. Sect. 55. p. 378. Sect. 65. Tithes to two by halves whether the Parishioner must so set them out p. 362. Sect. 24. Tithes are of Ecclesiastical Cognizance p. 357. Sect. 9. Objections against Tithes answered p. 350 and 351. Sect. 3. Whether Tithes are grantable by Copy p. 431. Tobacco what Tithes that pays p. 366. Sect. 32. Tombes and Sepulchres defaced where punishable p. 142. Sect. 9. Trades whether gain gotten thereby be Tithable and how p. 442. Transaction how it differs from Composition p. ibid. Translation of Bishops needs no new Consecration p. 49. Sect. 8. p. 27. Sect. 4. p. 29. Sect. 7. Trebel Dammages where and in what Case suable p. 442. Trees what Tithable or not p. 442 c. p. 377. Sect. 62. To whom the Trees growing in the Church-yard do belong p. 150. Sect. 22. If cut down to whom the Action belongs p. 137. Sect. 3. p. 153. Sect. 32. Turkeys whether Tithable p. 444. Turves whether Tithable ibid. Tyle-Stones and Brick Tyle whether Tithable p. ibid. V. VALUE of a Benefice in Case of Plurality whether to be computed according to the Kings Books or the very Annual Value thereof p. 295. Sect. 5. p. 299. Sect. 12. p. 303. Sect. 21. Venison whether Tithable p. 361. Sect. 21. p. 454. Vestry whence that word is derived p. 162. Sect. 5. Vetches whether Tithable or not p. 454. Vicar what the original thereof p. 186. Sect. 1. Where and in what Case he may sue for an encrease of Maintenance p. 199. Sect. 10 11. Vicarage how created p. 198. Sect. 6. How it differs from a Parsonage p. 197. Sect. 2. In whom the Freehold of the Glebe there-of is ibid Whether a Vicarage endowed may be appropriated and to who p. 197. Sect. 3. Who properly is Patron thereof whether the Parson or the Parsons Patron p. 199. Sect. 9. Whether a Vicarage Perpetual may be dissolved p. 202. Sect. 17. In what sense a Vicarage may be compared to a Commendam p. 203. Sect. 18. In what case a Vicarage may determine p. 199. Sect. 11. What amounts to an Vnion of the Parsonage and Vicarage p. 199. Sect. 11. Vicario deliberando occasione cujusdam Recognitionis what that Writ imports p. 648. Sect. 15. Vi Laica removenda in what case that Writ lies p. 646. Sect. 5. Vine-Trees or Vines what Tithes they yield p. 454. Violent hands laid on one in the Church or Church-yard what the penalty thereof p. 139 140. Sect. 6. p. 155. Sect. 37. p. 89 90. Sect. 16. Visitation the power of the Ordinary therein p. 34. Sect. 18. p. 89 90. Sect. 16. Whether an Archdeacon hath power of Visitation of Common Right p. 63. Sect. 7. What number of Attendants allowed by Law to Visitors p. 71. Sect. 7. Underwoods whether Tithable or not p. 455 456. Union of Churches what and by whom to be made p. 169. Sect. 1. What amounts to an Union of a Parsonage and Vicarage p. 199. Sect. 11. Unity of Possession the Law thereof in reference to Tithes also the properties thereof p. 383 454. Vodinus Archbishop of London slain by the Tyrant Vortiger p. 16. Sect. 5. Vortiger the Tyrant burnt in a Castle besieged by Aurelius Ambrose p. 16. Sect. 5. He surrendred Kent Suffolk and Norfolk to the Infidel Hengist p. ibid. Usurpation of the Pope how and when it originally began here in England and the progress thereof after the Conquest p. 97 98. Sect. 1. p. 111. Sect. 8. p. 130 c. Sect. 44. Usurper who properly is such p. 205. Sect. 1. Whether he may gain possession of an Advowson from the Crown p. 215. Sect. 18. p. 218. Sect. 22. vid. p. 219. Sect. 24. In what case an Usurpation puts the very Patron out of
possession p. 272. Sect. 5. Three Writs at Common Law against an Usurper and what they are p. 205. Sect. 1. W WAges of Servants whether Tithable p. 457. Wall of the Church-yard by whom to be repaired p. 144. Sect. 11. Wales when first subject to the Archbishoprick of Canterbury p. 17. Sect. 6. Waste Pastures in what case Tithable or not p. 457. Wax or Bees-Wax how to be Tithed p. 457. Way obstructed for carrying of Tithes Cognizable in the Ecclesiastical Jurisdiction p. 382. Sect. 82. vid. p. 394. Weapons drawn in the Church or Church-yard how punished p. 139. Sect. 6. Indictments thereon discharged and why p. 149. Sect. 22. p. 155. sect 37. Weild or Woad for Diers to whom the Tithe of that Dying Plant belongs whether as Great Tithe to the Parson or as Small Tithe to the Vicar p. 366. sect 32. p. 381. s 77. p. 457 458. Westminster-Abbey by whom Founded p. 328. sect 5. When the Revenues thereof were first vested in a Dean and Chapter of the Collegiate Church thereof p. 15. s 3. How it became Originally the place of Consecration and Coronation of the Kings of England p. 6. Sect. 8. Whitson-Farthings what and when paid p. 73. Sect. 10. Whore whether Actionable and where to call one so p. 519. Sect. 9. Willows whether Tithable p. 457. Witness one single Witness disallowed in the Ecclesiastical Court for sufficient proof whether Prohibition lies in that case p. 113 114. Sect. 11. p. 115. Sect. 12. p. 116. Sect. 12. p. 123. Sect. 26. p. 128. Sect. 43. Witch or the Son of a Witch whether those words are Actionable p. 524. Sect. 24. Wolsey Cardinal impower'd by the Popes Bull to retain the Archbishoprick of York and the Abbey of St. Albans in Commendam p. 111. Sect. 8. Wolstan Bishop of Worcester his Resolute Answer to King William the Conquerour p. 97. Sect. 1. Wood the Law in reference to the Tithe thereof p. 458 to 462. Computed among the Predial and Great Tithes by whom payable whether by the Buyer or the Seller whether due for Fuel spent in the Parishioners house p. ibid. In what sense it may be either Great or Small Tithes p. 365 366. Sect. 32. Whether Wood Tithable at the Common Law p. 372. Sect. 46. Wood for Hedging and Firing whether Tithable p. 369 370. Sect. 42. In what case the Vicar may have the Tithe thereof p. 381. sect 79. Wool the Law in reference to the Tithes thereof p. 198. sect 3. p. 359. sect 16. p. 366. sect 32. Of Sheep pastured in divers Parishes p. 462 c. Of Rotten Sheep whether Tithable p. 359. sect 15. Worcester-Church anciently a Priory p. 74. sect 10. Words of Contention in the Church or Church-yard how punished p. 139. sect 6. Writ of Right of Advowson for whom it lies p. 214 215. sect 17. The Writ De Haeretico Comburendo when taken away and abolished p. ult sect ult Y YOrk the Original of that Metropolitan See p. 14. sect 2. It anciently had a Metropolitan Jurisdiction over all the Bishops in Scotland p. 18. sect 9. ERRATA PAg. 25. lin 25. read Potestatem p. 35. l. 2. Archidiaconum p. 200. l. 37. Provenues p. 203. l. 7. Vicaria p. 205. l. 5. be with the Cure p. 209. l. 3. An. 1505 p. 285. l. 17. to his Father by the true p. 293. l. 31. too late p. 403. l. 38. Mepham's Canon p. 448. l. 23. to the Parson p. 470. l. ult Adulterum p. 471. l. 7. Hoel Dha p. 439. l. 15. Cognatio p. 497. l. 11. Adulterous Wife p. 501. l. 7. Thore p. 503. l. 6. Viro p. 530. l. 40. Crown p. 543. l. 18. Pardon l. 40. Doctors Advertisement THE ORPHANS LEGACY or a Testamentary Abridgment in Three parts viz. 1. Of Last Wills and Testaments 2. Of Executors and Administrators 3. Of Legacies and Devises Where the most material Points of Law relating to that subject are succinctly Treated as well according to the Common and Temporal as Ecclesiastical and Civil Laws of this Realm Illustrated with a great variety of select Cases in the Law of both Professions as well delightful in the Theory as useful for the practice of all such as study the one or are either active or passive in the other By the Author
whatsoever chargeable upon them respectively until such time as they shall receive the Profits arising from the same as formerly And no Process to issue out of any Court whatsoever against the persons aforesaid for their Non-payment of First-Fruits Tenths Pensions or any other the dues aforesaid c. The said Parsons are likewise by the said Act indemnified for not Reading the 39 Articles or not doing other thing enjoyned by Law until such time as the said Churches be Re-edified or made fit for Publick Worship The said Parsons and Vicars are likewise impower'd to lett Leases of their Glebe-Lands with the consent of the Patron and Ordinary for any Term not exceeding 40 years and at such yearly Rents without Fine as can be obtain'd for the same And that no Lapses incurred upon any Non-Presentation in due time of any of the Patrons of the said Livings since the said Fire shall any waies prejudice or make void the Presentations that the said Patrons have since made whereupon any Incumbent is since Instituted and Inducted any Law or Statute to the contrary in any wise notwithstanding By the Third Canon of that great Assembly of 180 Bishops at Rome in the Church of Constantiniana An. 1180. in the Twentieth year of Pope Alexander the Third it was Ordained That no man should be admitted to the Office of a Bishop under the age of Thirty years nor that any should be admitted to be a Deacon or Archdeacon or to have the government of a Parish until he were of the full age of Five and twenty years The next Chapter speaks of Vicars Vicarages and Benefices Gervasius a Monk of Canterbury in his Chronicle de tempore H. 2. under whom a Synod was convened at Westminster An. 1175. by Richard then Archbishop of Canterbury acquaints us with an Ancient Canon made at that Synod whereby Vicars are restrained from behaving themselves proudly against their Parsons a piece of Spiritual Insolence not grown quite out of practice to this day It is the Eleventh Canon the words are Illud etiam de Vicariis qui personis fide juramento obligati sunt duximus statuendum quod si fide vel Sacramenti religione contempta Personatum sibi falso assumentes contra Personas se erexerint si super hoc in jure vel confessi vel convicti fuerint de caetero in eodem episcopatu ad Officii sui Executionem non admittaâtur In all Appropriations of Churches there ever was and ought to be an establishment of sufficient Maintenance for the Vicar and his Successors pro sustentatione sua congrua made by the Bishop of the Diocess by and with the consent of such as to whom such Churches are Appropriated And this though for the most part consisting only of the Minute Tithes yet hath the denomination of a Benefice or Ecclesiastical Benefice as properly as any Rectory or Parsonage whatever for they are perpetual Vicars in whom the Vicarage or Benefice is as in Fee though not properly in demesne as in Fee as Temporal Inheritances are and therefore the word Beneficium with the Feudists and Canonists is the same as Feodum or Feudum with our Common Lawyers yet sometimes it is opposed to that which we call Allodium or what a man hath in his own Name and in his own proper Right and absolutely for that which is here understood by Beneficium may be possess'd nomine alieno certis sub Legibus which may not properly be said of Allodium that being properly what a man doth possess nomine proprio absolute An instance of this you have in the Grant made by King William Rufus to Anselme Archbishop of Canterbury Praecepit Rex ut investiretur Anselmus omnibus ad Archiepiscopatum pertinentibus atque ut Civitas Cantuariae quam Lanfrancus suo tempore in Beneficio à Rege tenebat Abbatia Sancti Albani quam non solum Lanfrancus sed Antecessores ejus habuisse noscuntur in Allodium Ecclesiae Christi Cantuariensis pro redemptione animae suae perpetuo jure transirent By the Ninth Canon of the Lateran Council under Pope Alexander It is prohibited to grant or promise any Ecclesiastical Benefices before they are actually void the reason of which Canon was to prevent the desire of the death of the present Incumbent by him who by such promise or grant had an expectation to succeed him in the Benefice In the next place follows the Chapter of Advowsons which the Canon Law calls Jus Patronatus being a power or right of Presenting one to be Instituted to a vacant Ecclesiastical Benefice I say Vacant because if the Benefice be not then void the Presentation will be void in Law the reason is because were it otherwise occasion might thereby be given the Presented to desire or wish for the Incumbents death cap. Nulla de Concess Praebend And although what we call Advowson the Canon Law calls Jus Patronatus yet every Jus Patronatus is not an Advowson according to the Civil Law for the Jus Patronatus hath a twofold acceptation in the Law the one That Right which Lords or Patrons have on their Bondmen made Free by Manumission and so it is taken in ff de jur Patron but this is not to our present purpose the other That Right of Presentation to an Ecclesiastical Benefice which belongs to Patrons of Benefices and Churches which in the Law is likewise called Jus Advocationis as appears by cap. Quia Clerici de Jur. Patronat And this is that Advowson here intended This Right of Advowsons or Jus Patronatus the Law doth also distinguish into Ecclesiastical and Laical Touching the Ecclesiastical vid. Covarru in qq pract c. 36. nâ 2. which is so called not because an Ecclesiastick doth enjoy or possess it for so he may also possess a Laick Patronage but because it belongs to one for that he hath founded built or endowed the Church Ex bonis Ecclesiasticis or by reason of some Rectory of a Church or some Ecclesiastical Dignity As when a Benefice is erected with money gotten ex bonis Ecclesiasticis in that case he hath Jus Patronatus Ecclesiastici or Patronatum Ecclesiasticum And so it is if one hath the Advowson or right of Presentation on because he is a Bishop a Dean or the like this also is Jus Patronatus Ecclesiastici so the Gloss in Clem. 2. de jur Patronat alii The other kind of Advowsons or Jus Patronatus Laici is so called for that it belongs to one because he hath either founded built or endowed some Church or erected some Benefice Ex bonis patrimonialibus Lessius de Justic jure cap. 34. de Benefic Dub. 4. In pursuance of that distinction it is that the Canon Law determines in a different manner in respect of Ecclesiastick and Laick Patronages touching the time limited for Presentation to a vacant Benefice for according to that Law if the Patronage be Laick the Patron is obliged to
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 inâ 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
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
the Presentees Obligation to make a Resignation within Three months after the Patron so please may amount to Simony within the Statute of 21 Eliz. cap. 16. 19. A corrupt Contract for an Advowson may make the subsequent incumbent Simoniacal 20. To plead a Simoniacal Contract against a Bond it not so appearing is no admissable Plea 21. Masters of Chancery why so called and what they were anciently 22. Prihibition to the High Commissioners that would have put a Parson to his Oath touching Simony 23. In what Cases by reason of Simony the Patron may present after Six months and the Church said to be full as to one not to another 24. The injunction of King Ed. 6. against Simony 25. The form of the Oath of Simony 26. A Simoniacal Contract a good plea in Barr of Tithes 27. A further description in Law of the difference between Simoniacus and Simoniace Promotus 28. The Simoniace Promotus though ignorant of the Simony yet is deprivable in the Ecclesiastical Court 29. A Simoniacal Contract to which neither the Incumbent nor the Patron are privy may yet be Simony within the Statute of 31 Eliz. 30. Simony in it's utmost latitude is properly cognizable in the Ecclesiastical Court 31. Simony worse than Felony A Bond or Obligation good though entred into upon a Simoniacal Contract 32. Whether a Parson outsed for Simony may be after admitted to the same Benefice by the Kings presentation 33. A Person Simoniace promotus and ousted is by the express words of the Statute disabled to accept the same Benefice 34. Where Simony is pleaded in Barr of Tithes the Ecclesiastical Court shall take cognizance and no Prohibition lies 35. Whether the Father may buy the next avoidance and present his Son no Simony to buy an Advowson 36. To procure a Man in consideration of Marriage to be presented to a Benefice is Simony 37. Four observations on the Statute of 31 Eliz. cap. 6. by the Lord Coke 38. The extent of the words Present or Collate in the said Statute also the diversity in Law between a Presentation made by a Rightful Patron and an Usurper 39. What punishment by the Canon Law in case of Simony and the strange conceit of Rebuffus touching the same 40. The reasons why it hath its denomination from Simon Magus how many ways it may be committed according to the Canon Law 1. SIMONY from Simon Magus as Thomas Aquinas and others conceive Tho. Aquin. 20. 2. ae q. 100. art 1. 40. is according to Panormitan's definition thereof studiosa voluntas emendi vel vendendi aliquid Spirituale vel Spirituali annexum opere subsecuto Panor c. Nemo extra c. Or it may be described thus viz. Simony is when any person is presented or collated to any Benefice with Cure of Souls Dignity Prebend or Living Ecclesiastical c. or hath any such given or bestowed on him for or in respect of any Sum of Money reward payment gift profit or benefit directly or indirectly or for or by reason of any promise agreement grant bond covenant or other assurance for any Sum of Money reward payment gift profit or benefit whatsoever directly or indirectly or for or in respect of any such corrupt cause or consideration and every Presentation Collation and gift as also every Admission Investure and Induction thereupon is by the Statute utterly void and whereby the King his Heirs and Successors for that one turn only shall present collate c. And every person so giving or taking any such Sum of Money c. or taking or making any such promise c. doth forfeit and lose the double value of one years profit of every such Benefice Moreover the person so corruptly taking any such Benefice is thereupon and from thenceforth adjudged a person disabled in Law to hold and enjoy the same Benefice The like penalty of the said double value doth he incurr who for any Sum of Money reward c. directly or indirectly other than the Lawful Fees or for or by reason of any promise c. doth admit institute install induct any person to or in any Benefice with Cure c. Likewise if any Incumbent of any such Benefice shall corruptly resign or exchange the same or for or in respect thereof shall corruptly take directly or indirectly any pension sum of money or benefit whatever in such case both the giver and taker corruptly as aforesaid shall forfeit double the value of the sum so given taken or had whereof the one Moiety to the King c. the other to him that shall sue for the same in any Court of Record In which Statute of 31 Eliz. there is a Proviso that the censures Ecclesiastical shall not be restrained by any of the premises therein contained 2. They that Simoniacally buy Ecclesiastical Livings are compared to Simon Magus and they that sell them to Gehazi the Servant of Elisha if a person be possest of an Ecclesiastical Living by such Simony as whereunto he was not privy be is said to be in only Simoniace but if he be in any corrupt and Simoniacal Contract to which himself is a party and was privy and consenting thereunto in that case he is Simonaicus both which are inhibited by the Canons Ecclesiastical or Provincial Constitutions as also are the said corrupt and Simonaical selling as well as buying Ecclesiastical Livings Lindw e. Nulli liceat Ecclesiam c. Quia plerunq and that under penalties greater than the Temporal Laws did then or now will allow of And although by Simony in the vulgar acceptation of the word is commonly understood such corrupt Contract for Ecclesiastical Livings as aforesaid yet it hath a more extensive signification and that is a more proper sense which is by corrupt Ordinations of Ministers or for undue Licences to Preach for prevention whereof it is provided in the Statute aforesaid that if any person shall receive or take any Money Fee Reward or any other profit directly or indirectly or any Promise Agreement Covenant Bond or other assurance thereof Lawful Fees excepted for or to procure the Ordaining or Making of any Minister c. Or giving any Order and License to Preach shall forfeit Forty shillings and the Minister so made Ten pound beside the loss of any Benefice Living or other Ecclesiastical promotion after Induction that any such Minister shall within Seven years next after such corrupt entring into the Ministry accept and take the one half of which Forfeitures do go to the King c. the other to the Informer c. And the Patron in that case may present c. as if the party so inducted were naturally dead 3. The forfeiture of the double value of one years profit of the Church by way of penalty as is beforementioned is not to be computed only according to the valuation in the Kings Books in the First-fruit Office but according to the just and full annual value of the
c. The Venerable Mr. Bede doth suppose that this answers to the heaviest Curse amongst the Jews for they had 1 their Niddui 2 their Cherem that is Anathema This their Cherem was either the simple and single Anathema or their Shematha or Maranatha For this dreadful kind of Excommunication here called Maran-atha the Jews called Sammatha Sem signifying the name of God Tetragrammaton or Jehovah and atha he cometh though others will have that Sammatha to be derived from Sam that is their and Mitha that is death their death But not to insist further on the words whereby this Ecclesiastical Censure of Excommunication is signified for that is but as a Flash of Lightning in respect of the Thunder of the Curse it self 3. Although every Excommunication is an Ecclesiastical Censure yet every Ecclesiastical Censure is not an Excommunication for an Ecclesiastical Censure may be as well per Suspensionem and per Interdictum as per Excommunicationem Extr. de verb. sig c. quaerenti Hanc autem Censuram fulminare possunt Eccles Praelati quibus ab homine Lege vel Canone aut Consuetudine tribuitur Jurisdictio Ordinaria De Offic. Ord. c. cum ab Ecclesiar 4. It hath been sometimes question'd what the Law intends by Excommunication ipso facto that Clause imports ac si diceret ipso jure that is nullo hominis ministerio interveniente Not. per Arch. de Rescrip c. 1. verb. ipso jure li. 6. Lindw de Offic. Archid. gloss in c. Vt Archidiacont verb. ipso facto And regularly when a person is Excommunicated it is not intended only of the Lesser Excommunication Nam Excommunicatio simpliciter prolata intelligitur de Majori Extr. de Sen. Excom c. Si quem 11. q. 3. debent Lindw glos verb. Excommuni c. Exhorrenda De Procuratorib 5. Notwithstanding the Law doth not exclude the Excommunicate from such lawful Acts as sine quibus vix potest consistere vita hominis Glos ibid. in verb. Actu Legitimo And although depending the Excommunication he is disqualified to commence Actions at Law as a Plaintiff yet he may ad sui defensionem appellare caetera in Judicio facere exercere quae ad ejus defensionem pertinent Gloss Lindw ibid. And according to Lindwood he may Matrimonium Contrahere etiam Testari Lindw ibid. 6. This Sentence of Excommunication ought not to be pronounced against Offenders otherwise than rite cum debita solennitate that is juris ordine servato and therefore the Canon requires That there issue a Summons or previous Citation to the Delinquent before Sentence of Excommunication be pronounced against him Primo vocetur Delinquens propositurus Causam rationabilem quare pronunciari non debeat incidisse in dictam Sententiam Ad effectum namque quod aliquis denuncietur Excommunicatus à Canone vel Constitutione requiritur Citatio praevia C. Si per vim vel alio modo l. fin de Man Obed. c. inter quatuor de Cens c. fi in Oec cum glos So likewise the Canon is That Nemo Excommunicationem promulget ubi Excessus non est manifestus nisi Monitione Canonica praecedente Lindw de Sentenia Excom c. Vt Archidiaconi unless the same party for the same cause be Excommunicated again in which case there needs not any previous Citation or Monition as before Nam Excommunicatio quae sit saepius ex eadem Causa potest fieri nulla Citatione nullaque Monitione praevia Ibid. c. praeteria ver Excommunicentnr For in truth this Excommunication in such case is not any new Sentence of Excommunication but only a Renâvation of the former with an Aggravation for which reason it is that such Excommunication as is again pronounced against the same person for the same cause repeated by him may be nulla Citatione nullave Monitione praecedente Ibid. Extr. de Judaeis c. ita quorundam Whence it doth appear That a person Excommunicated may be Excommunicated again either for the same or some other new Cause Ibid. 3. q. 4. engeltrudam And although the First Excommunication is in effect sufficient for the ejecting such an one out of the Church so that he who is once cast out of the Church amplius excludi non potest yet by this Second Denunciation there follows another effect and that is That thereby he may be reputed and held by all the Faithful in all places as a person utterly shut out of the Church donec per suum Judicem secundum formam Ecclesiae fuerit absolutus Gloss ibid. verb. denuncientur 7. Also when a person Excommunicated hath Forty daies persisted in his obstinacy contrary to Law under that Sentence the Bishop may then make his humble address to the King for the apprehending and imprisoning such obstinate Excommunicates but this may not be done by any inferiour to a Bishop Nam ad rogatum praelatorum inferiorum Rex non consuevit scribere pro Captione Excommunicatorum Lindw de Sententia Excom c. praeteria glos in verb. Praelatorum And therefore if a man be Excommunicated by any inferiour to a Bishop as by a Dean Archdeacon or the like yet the Supplication for his Majesties Writ ought to be by the Bishop of that Diocess and in his Name Nam Inferiores Episcopis non possunt invocare Brachium Seculare Ibid. Lindw de Cohab. Cler. Mul. c. 1. § si nec ver Brachium Seculare And in case the Bishop shall herein refuse to do what the Law requires he may be constrained thereto by the Archbishop Ibid. de jur patron c. nullus Nor can the Excommunicated person who after Forty daies persisting in his obstinacy is upon the Kings Writ on the Significavit pro Corp. Excom Capiendo apprehended or like to be apprehended evade Imprisonment or defend himself by an Appeal or by virtue thereof or by shewing the same to the Temporal Judge that so under pretence of a dependency of an Appeal he may escape Imprisonment because such Appeal as to the validity or invalidity thereof or teneat vel non teneat legitima vel non legitima falls under the scrutiny and examination not of the Temporal but Ecclesiastical Judge and therefore si talis indagâ sive discussio pertains not to the Secular Judge it were frivolous to alledge that before one not qualified to examine the merits of the Appeal Dict. c. praeteria glos in verb. Dari debet And as persons Excommunicated cannot legally have any shelter or subterfuge under pretence of such Appeals so neither do the Canons suffer the Contemners of this Sentence of Excommunication to go unpunished under which number regularly and generally are computed all such as animo indurato do persevere under Excommunication by the space of Forty daies according to the Custome of the Realm of England Lindw de Sententia Excom c. ut Archidiaconi glos in verb. Contemnentes But more particularly the Canons hold them Contemners of this Excommunication who add Culpam culpae or go