THE CLERGY Vindicated OR THE RIGHTS AND PRIVILEGES That belong to them ASSERTED According to the Laws of England MORE Particularly touching the Sitting of BISHOPS in PARLIAMENT and their making Proxies in Capital Cases LONDON Printed by E. T. and R. H. 1679. THE RIGHTS and PRIVILEGES OF THE CLERGY According to the Laws of England THe Clergy of England or the whole number of those that are De Clero Domini of the Lord's Lot or Share as the Tribe of Levi was in Judea is according to our Law twofold Clerus Major and Clerus Minor the Greater and Lesser Clergy The former doth comprehend the Barons Spiritual or Lords of Parliament that is to say the arch-Arch-Bishops and Bishops The later contains Arch-Deacons Deans Prebends Parsons Vicars and Chaplains Of both these kinds I will treat severally and apart But before I do so I shall give the Reader an Account in general of the Ecclesiastical State of the Church of England as I find it described by Mr. Cambden and Sir Edward Coke Mr. Cambden tells us that England hath two Provinces and accordingly two Arch-Bishops to wit the Arch-Bishop of Canterbury Primate and Metropolitan of all England and the Arch-Bishop of York Under these are twenty five Bishops To the Arch-Bishop of Canterbury are subject twenty two To the Arch-bishop of York the other three Now what Bishopricks these be with the Shires and Diocesses that are at this day under their Jurisdiction follow thus In the Province of Canterbury The Bishoprick of Canterbury together with that of Rochester containeth under it Kent it self The Bishoprick of London hath under it Essex Middlesex and part of Hertfordshire The Bishoprick of Chichester hath belonging to it Sussex The Bishoprick of Winchester compriseth Southamptonshire Surrey and the Isle of Wight Gernsey and also Jersey Islands lying against Normandy The Bishoprick of Salisbury comprehendeth Wiltshire and Berk shire The Bishoprick of Exeter containeth Devonshire and Cornwal The Bishoprick of Bath and Wells joyned together hath under it Somersetshire The Bishoprick of Glocester hath belonging to it Glocestershire To the Bishoprick of Worcester is subject Worcestershire and part of Warwickshire To the Bishoprick of Hereford Hereford and part of Salop or Shropshire The Bishoprick of Coventry and Litchfield joyned together have under it Staffordshire Derbyshire and the other part of Warwickshire as also that part of Shropshire which lieth toward the River Râ—pil Thâ—n the Bishoprick of 〈◊〉 which of all others is the greatest is bounded 〈…〉 Hâ—ntingâ—â—â—shire Bedfordshire Buckinghamshire and the 〈…〉 〈…〉 of Ely pertain Cambâ—â—â—â—â—shire and the Isle of Ely it self 〈…〉 of Norwich is Northâ—â—â—â— and Suâ—â—olk 〈…〉 of Oâ—â—â—â—ord hath under it Oxâ—â—fordshire 〈…〉 of Peterborough comprizeth Northamptonshire and Rutlandshire 〈…〉 the Bishoprick of Bristol is Doâ—setshire 〈…〉 Diocesses in England are to be added those of Wales which are 〈…〉 oâ— their own peculiar Arch-Bishoprick and made also fewer in number seâ—â—◠〈…〉 brought sâ—arce to â—our to wit The Bishoprick of Mâ—nâ—â—a havinâ— the Seat 〈…〉 the Bishoprick of 〈◊〉 the Bishoprick of Baâ—â—â—â— and the Bishoprick of 〈…〉 In the Province of York 〈…〉 of 〈◊〉 comprehendeth Yorkshire it self and Nottinghamshire 〈…〉 containeth 〈◊〉 Richmondshire 〈◊〉 part of Cumberâ—â—â—◠〈…〉 and of â—â—â—â—â—â—shire The Bishoprick of Durham hath Durham it self under it and Northumberland The Bishoprick of Carlâ—sle containeth within it part oâ— Camberland and the County of 〈…〉 〈…〉 there are in England Deanriâ—â— twenty six whereof thirteen were ordained by 〈…〉 in the greatâ—â— Cathâ—â—â—al Churches after the Monks were thrust out Arch-Dâ—aâ—â—â—â—ies sixty Dignities and Probends five hundred forty four Numbred also there 〈◊〉 Parish Churches under Bishopricks nine thousand two hundred eighty four oâ— which three thousand eight hundred forty five be Appropriate Now Appropriate Churches those are called which by the Pope's Authority coming between with consent of the King and the Bishop of the Diocess were upon certain Conditions tyed or Instruments united annexed and incorporated for ever unto Monasteries Bishopricks Colledges and Hospitals endowed with small Lands either for that the said Churches were built within their Lordships and Lands or granted by the Lords of the said Lands Which Churches afterwards when the Abbies and Monasteries were suppressed became Lay Fees to the great dammage of the Church Thus much Mr. Cambden As for Sir Edward Coke he informeth us That the Ecclesiastical State of England is divided into two Provinces or Arch-Bishopâ—icks viz. Of Canterbury and of York The Arch-Bishop of Canterbury is styled Metropolitanus Primas Totius Angliae and the Arch-Bishop of York Primas Angliae Each Arch-Bishop hath within his Province Suffragan Bishops of several Diocesses The Arch-Bishop of Canterbury hath under him within his Province of ancient Foundations viz. Rochester his Principal Chaplain London his Dean Winchester his Chancellor Norwich Lincoln Ely Chichester Salisbury Exeter Bath and Wells Worcester Coventry and Litchfield Hereford Landâ—ff St. Davids Bangor and St. Asaph and four founded by King Henry the Eighth erected out of the Ruins of dissolved Monasteries that is to say Glocester Bristol Peterborough and Oxford The Arch-Bishop of York hath under him four viz. Ths Bishop of the County Palatine of Chester newly erected by Henry the Eighth and annexed by him to the Arch-Bishop of York the County Palatine of Durham Carlisle and the Isle of Man annexed to the Province of York by Henry the Eighth But a greater number this Arch-Bishop had which time hath taken from him Every Diocess is divided into Arch-Deaconries whereof there be sixty And every Arch-Deaconry is divided into Deanries and Deanries again into Parishes Towns and Hamlets Having thus given my Reader an Account how the Ecclesiastical State of England standeth at this day I come to speak of the Clergy according to the division thereof by me before given viz. Into the Greater and Lesser Clergy First Of the Greater or Superior Clergy comprehending the Prelates the Arch-Bishops and Bishops THat the Law of England may be the better understood concerning our Superior Clergy I shall reduce it to these Particularities following which are not unworthy of the Reader 's Observation 1. Who the Founder and Patron of all Bishopricks 2. To whom the Spiritualties and Temporalties of Bishops appertain Sede Vacante 3. How Bishops were anciently made 4. Their Jurisdiction what and whence derived 5. Their Courts 6. By whom only commanded to certifie 7. Bishops Proceedings in Ecclesiastical Courts under the Name Style Seal of the Bishops how warrantable 8. With what Council they are assisted 9. Their Dominion and Property relating to Temporalities 10. What the King hath after every Bishop's death 11. Bishopricks whether Saleable 12. Their Right of Sitting in Parliament 13. Their Right of making Proxies in Cases of Life and Death 14. Statutes where made without them 15. Their Privileges as they are Lords of Parliament 16. Their Precedency 17. Their Excommunications 1. The Founder and Patron of all Bishopricks IT appeareth by our Books Co. Litt.
Ecclesiastical Court 2. When the Right of Tithes shall be tried in the Spiritual Court Co. Lib. 13. f. 17. Case of Modus decimandi and the Spiritual Court hath Jurisdiction thereof that other Courts shall be outed of their Jurisdiction 3. Where the Common or Statute Law Co. Lit. 96. b. giveth Remedy in Foro Seculari whether the matter be Spiritual or Temporal the Cognisance of that Cause belongeth to the King 's Temporal Courts only unless the Jurisdiction of the Ecclesiastical Court be saved or allowed by the Statute to proceed according to the Ecclesiastical Laws 4. Cujus Juris i. e. Jurisdictionis est Principale ejusdem Juris erit Accessorium Co. lib. 13. Collins and Hardinger's Case Co. Lib. 13. Case de Modo decimandi Or Consonans Rationi quod Cognitio Accessarii in Curia Christianitatis sit ubi Cognitio Causa Principalis ad forum Ecclesiasticum noscitur pertinere I will conclude this Section with this Remark The Office of Episcopacy is not from the King but of God The Place Station and Power wherein that Office is exercised is from the King It is the King that gives the Bishoprick It is God that makes the Bishop A Soveraign Prince claims not the Power of ordaining a Pastor in the Church On the other side Who but Princes can take upon them to have power to erect and dispose of Episcopal Seas within their own Dominions 5. Their Courts THe Courts wherein the Bishops exercise their Jurisdiction in Matters Spiritual or Ecclesiastical are these following 1. The Court of Convocation This Court is styled or called the Convocation of the Clergy who are assembled for Consultation upon matters Ecclesiastical in time of Parliament It consisteth of two distinct Houses The one called the Higher Convocation House where the Arch-Bishops and Bishops sit severally by themselves The other the Lower Convocation-House where all the rest of the Clergy are bestowed And as there be two Houses of Convocation so there be two Prolocutors one of the Higher House the other of the Lower House who presently upon the first Assembly is by the motion of the Bishops chosen by the Lower House and presented to the Bishops for their Prolocutor that is the Man by whom they mean to deliver their Resolutions to the Higher House and to have their own House especially ordered and governed His Office is to cause the Clerk to call the Names of such as are of the House when he seeth cause to cause all things propounded to be read by him to gather the Suffrages and such like Those that sit in this same Lower House are called the Procters of the Clergy which are chosen and appointed to appear for Cathedral or other Collegiate Churches as also for the Common Clergy of every Diocess at the Parliament Whose Choice is in this sort First The King directeth his Writ to the Arch-Bishop of every Province for the summoning of all Bishops Deans Arch-Deacons Cathedral and Collegiate Churches and generally of all the Clergy of his Province after their best discretion and judgment assigning them the time and place in the said Writ Then the Arch Bishops proceed in their accustomed Course One Example may serve to shew both The Arch-Bishop of Canterbury upon his Writ received directeth his Letters to the Bishop of London as his Dean-Provincial first citing himself peremptorily and then willing him to cite in like manner all the Bishops Deans Arch-Deacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the place and against the day fixed in the Writ But directeth withal that one Proctor sent for every Cathedral or Collegiate Church and two for the Body of the Inferior Clergy of each Diocess may suffice And by vertue of these Letters authentickly sealed the said Bishop of London directeth his like Letters severally to the Bishop of every Diocess of the Province citing them in like sort and commanding them not only to appear but also to admonish the said Deans and Arch-Deacons personally to appear and the Cathedral and Collegiate Churches as also the Common Clergy of the Diocess to send their Proctors to the place and at the day appointed And also willeth them to certifie the Arch-Bishop the names of all and every one so monished by them in a Schedule annexed to their Letters Certificatory The Bishops proceed accordingly and the Cathedral and Collegiate Churches as also the Clergy make choice of their Proctors Which done and certified to the Bishop he returneth all answerably to his charge at the day Having given an Account how the Proctors of the Clergy are chosen it will be high time to shew the Jurisdiction of this Court what it was and what now is 1. What their Jurisdiction was The Jurisdiction of this Court was Co. 4. Inst 323. to deal with Heresies Schisms and other mere Spiritual and Ecclesiastical Causes and therein they did proceed Juxta Legem Divinam Cannones Sanctae Ecclesiae And Co. 4. Inst f. 322. as they could never assemble together of themselves but were always called together by the King 's Writ so were they oftentimes commanded by the King 's Writ to deal with nothing that concerned the King's Laws of the Land his Crown and Dignity his Person or the State of his Council or Kingdom 2. What their Jurisdiction now is By the Statute of the twenty fifth of Henry the Eighth C. 19. their Jurisdiction and Power is much limited and straitned concerning their making of new Canons For they must have both License to make them and after they be made the King 's Royal Assent to allow them before they be put in Execution But note that in the end of that Act of the twenty fifth of Henry the Eighth there is an express Proviso that such Canons as were made before that Act which be not repugnant to the King's Prerogative the Laws Statutes or Customs of the Realm should be still used and executed as they were before the making of that Act. It may be then queried whether before the Statute of the twenty fifth of Henry the Eighth a Disme granted by the Clergy could bind the Clergy before the Royal Assent It is answered that before this Act of the twenty fifth of Henry the Eighth a Disime granted by the Clergy at the Convocation did not bind the Clergy before the King 's Royal Assent Co. 4. Inst 323. 20. H. 6.13 2. The Prerogative Court of the Arch-Bishop In this Court all Testaments be proved and all Administrations granted where the Party dying within the Province of the Arch-Bishop of Canterbury hath Bona Notabilia in some other Diocess than where he dieth which regularly is to be to the value of five pound but in the Diocess of London it is ten pound by Composition It is said that Administration must be in two places if the Intestate died in a Peculiar within the Province of York having Chattels in both Cro. 1 Part. f. 719. 3.
Temporal Baronies do enjoy all the Immunities that the Nobility and Peers of Parliament do saving only they are not to be judged by their Peers And the reason of this is because the Bishops cannot pass in like Cases upon the Tryal of any other of the Peers for that they are prohibited by the Canons of the Church to be Judges of Life and Death And reason would that the other Peers should not try them for this Tryal should be mutual for as much as it is performed upon their Honours without any Oath taken Now the Privileges that the Bishops claim as Peers of the Realm are such as these following 1. The Person of a Bishop shall not be arrested in Debt or Trespass by his Body 2. If a Bishop be Demandant or Plaintiff Tenant or Defendant there must be a Knight returned of his Jury or else the Array may be quashed 3. Arch-Bishops and Bishops are not bound to attend Leets nor to take the Oath there administred 4. A Day of Grace is never granted where a Bishop is Tenant or Defendant 5. If a Bishop be Defendant in Star-Chamber or Court of Chancery a Subpoena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in lieu thereof 6. Every Arch Bishop or Bishop coming to the King at his Commandment and passing by any of the King's Forests may hunt and kill one or two of the King 's Deer 7. If a Bishop be Party to a Suit and would be essoigned he that casts the Essoigne out must put in Sureties to prove the Cause Which is not usual in the Case of a Common Person 8. If a Plaintiff recover against a Bishop in an Action of Debt or Trespass upon such a Plea pleaded by him or other Default in him so that a Fine thereby doth grow to the King and thereupon a Capias pâ—o Fine issueth out against him this shall not prejudice the Bishop so as the Plaintiff may thereby take advantage by Prayer that the Bishop shall abide in Execution c. 9. Whereas by a Statute made in 32. H. 8 c 16. it is enacted that the Subjects of the Realm shall not keep in their Families or Houses above the number of four Strangers born nevertheless by a Proviso in the said Act every Lord of Parliament hath his Privilege allowed unto him to keep in his Family the number of six Strangers born any thing in that Act to the contrary notwithstanding 10. By the Statute of West 1. c. 34. If any Person shall divulge false Tales of any of the Lords of Parliament by which Dissention may be betwixt the Commons and them the Offender is to be imprisoned until he bring forth the Author In brief My Lords the Bishops as 't is said before may challenge a Fruition of all the Privileges in virtue of their Baronies that the Lords Temporal can by virtue of theirs saving only the Bishops cannot be tryed by their Peers Which manner of Tryal was as I am informed brought into this Realm by William the Conqueror being answerable to the Norman and French Laws and agreeable to the Customs Feudal where almost all the Controversies arising between the Sovereign and his Vassal are tryed per Judicium Parium suorum 16. Their Precedency SIr Edward Coke treating on the Statute of the thirty first of Henry the Eighth c. 10. concerning the Precedency of the King 's great Officers hath these same words And first Cokâ— 4. Inst. 36â— for the Lords Spiritual who sit in Parliament on the King 's Right Hand amongst themselves 1. The Arch-Bishop of Canterbury 2. The Arch-Bishop of York on the same form 3. The Bishop of London 4. The Bishop of Durham 5. The Bishop of Winchester And then all the other Bishops of both Provinces shall sit and be placed after their Antienties as before this Act was accustomed But having regard to the Lords and Noble Peers of the Realm both the Arch-Bishops have place above all the great Officers and Nobility in Parliament Council and Commissions saving in the Star-Chamber the Lord Chancellor or Lord Keeper hath the Precedency of them But the other Bishops have place above all the Barons of the Realm because they hold their Bishopricks of the King per Baroniam but they give place to Viscounts Earls Marquesses and Dukes Note that in the penning of all Acts of Parliament the Lords Spiritual have the Preseance of the Lords Temporal And this shall suffice for the placing of the Lords Spiritual in Parliament c. according to Sir Edward Coke I will offer something out of Mr. Seagar the famous Herauld touching Preseance in Provincial Assemblies and elsewhere When the Arch-Bishop of Canterbury sitteth in his Provincial Assembly he hath on his Right Hand the Arch-Bishop of York and next unto him the Bishop of Winchester and on the Left Hand the Bishop of London But if it fall out that the Arch-Bishop of Caenterbury be not there by the Vacation of his See then the Arch-Bishop of York is to take his place who admitteth the Bishop of London on his Right Hand and the Bishop of Winchester to his Left the rest sitting as they are Elders by Consecration C. Lib. 4. c. 24. Of Honours Military and Civil A Bishop must do Reverence unto his Father at home but being in the Church the Father shall follow him Between two Equals he that is in his own Jurisdiction shall precede As if an Arch-Bishop do come into a Diocess of a Bishop notwithstanding he is a Person of more Dignity yet ought he give Honour unto the Bishop because his Presence doth not cancel his Authority C. Lab. 4. c. 24. Of Honour Military and Civil 17. Their Excommunications EXcommunication that is the greatest Judgment upon Earth being that which is ratified in Heaven will be the better understood by these Particularities 1. It s Definition 2. It s Division 3. The Writs that belong to it 4. By whom it ought to be cerified 5. The Power of it in a Christian Church First Its Definition Excommunication is thus defined by Panormitan Co. Lit. 133. b Excommunicatio est nihil aliud quà m Censura a Canone Vel Judice Ecclesiastico prolata inflicta privans legitima Communione Sacramentorum quandoque Hominum Secondly Its Division This Excommunication thus defined by the Canonist is twofold Co. Lit. 133 b. it is either Lesser or Greater The Lesser is Per quam quis a Sacramentorum participatione Conscientia vel Sententia arcetur The Greater Excommunication is that which Non solùm a Sacramentorum verum etiam fidelium Communione excludit ab omni actu legitimo separat dividit Either of these disableth the Party to sue any Action in the Kings Courts And yet our Books tell us that every Excommunication disableth not the Party As for Example If Bailiffs and Commons 30. E. 3.15 Co. Lit. 134. a. or any other Corporation aggregate of many bring an Action Excommengement in the
Bailiffs shall not disable them for that they sue and answer by Attourney otherwise it is of a sole Corporation But if Executors or Administrators be excommunicated they may be disabled because they which converse with a Person excommunicate are excommunicate also If a Bishop be Defendant Co. Lit. 134. a. 9 A. 7.21 b. an Excommunication by the same Bishop against the Plaintiff shall not disable him and it shall be intended for the same Cause if another be not shewed Thirdly The several Writs that belong to it There are three sorts of Writs appertaining to Excommunications The one is called Excommunicato Capiendo Another named Excommunicato Deliberando The Third is styled Excommunicato Recipiendo Excommunicato Capiendo is a Writ directed to the Sheriff for the Apprehension of him that standeth obstinately excommunicated for forty days For such a one not seeking his Absolution hath or may have his Contempt certified or signified into the Chancery whence issueth this Writ for the laying of him up without Bail or Mainprize until he conform himself And when he is justified and hath made Agreement then the Bishop shall send his Letters to the King testifying the same and then it shall be commanded to the Sheriff to deliver him by a Writ called Excommunicato Deliberâ—â—do But if the Person excommunicated and for his Obstinacy being committed to Prison be inlawfully delivered thence before he has given Caution to obey the Authority of the Church then he is commanded to be sought for and laid up again by a Writ called Excommunicato Recipiendo My Lord Coke tells us Co. 2. 〈◊〉 â— 23. that if a Man be excommunicated and offer to obey and perform the Sentence and the Bishop refuses to accept it and to assoil him he shall have a Writ to the Bishop requiring him upon performance of the Sentence to assoil him c. And also the Party grieved may have his Action upon his Case against the Bishop in like manner as he may when the Bishop doth excommunicate him for a matter which belongeth not to Ecclesiastical Cognizance Also the Bishop in those Cases may be indicted at the Suit of the King Fourthly By whom Excommunication ought to be certified It is declared in our Books Co. Lit. 134. a. 12. â— 4.15.20 H. 6.17.11 H. 4.14 that none can certifie Excommengement but only the Bishop unless the Bishop be beyond Sea or in Remotis or one that hath ordinary Jurisdiction and is Immediate Officer to the King's Courts As the Arch-Deacon of Richmond or the Dean and Chapter in time of Vacation But in antient time every Official or Commissary might testifie Excommengement in the King's Court 11. H. 4.62 and for the mischief that ensued thereupon it was ordained by the King in Parliament that none should testifie Excommengement but the Bishop only If a Bishop certifie 33 E. 3. Excom 29. that another Bishop hath certified him that the Party which is his Diocesan is excommunicated this Certificate upon anothers Report is not sufficient If the Bishop certifieth the Excommunication under Seal â—4 E. 3. Excom â— albeit he dieth yet the Certificate shall serve And it is to be observed Co. 2. Inst 623.28 E. 3.97.14 H. 4 14. that at the Common Law a Certificate of the Bishop whereupon a Significavit that is a Writ De Excommunicato Capiendo was to be granted ought to express the Cause and the Suit against the Party especially in the Certificate But it may be queried whether an Excommunication and Certificate thereof by any Foreign Power can disable the Party It is answered 16. E. 3. Excom 4.4 H. 7.15.12 E. 4.15 that if the Bishop of Rome or any other having Foreign Authority doth excommunicate any Subject of this Realm and certifieth so much under his Seal of Lead this shall not disable the Party For the Common Law disallows all Acts done in disability of any Subject of this Realm by any Foreign Power out of the Realm as things not Authentick Whereof the Judges should give Allowance Fifthly The Power of Excommunication in a Christian Church A most Learned Doctor of our Church that he may give the Church her due and Caesar his asserts and proves these Particulars First That under the Gospel there is a Power in the Officers of the Church by virtue of Divine Institution to exclude any Offenders out of the Christian Society for transgressing the Laws of it The Second That this Power doth remain formally in the Church after its being incorporated into the Commonwealth The Third That after the Churches being incorporated into the Common-wealth the Right of Supreme Management of this Power in an External way doth fall into the Magistrates Hands consisting in these four things 1. A Right of prescribing Laws for the Management of Church-Censures 2. A Right of bounding the manner of Proceeding in Censures that in a settled Christian State Matters of so great weight be not left to the Arbitrary Pleasure of any Church-Officers 3. The Right of adding Temporal and Civil Sanctions to Church Censures and so inforcing the Spiritual Weapons of the Church with the more keen and sharp ones of the Civil State 4. To the Magistrate belongs the Right of Appeals in case of unjust Censure So that the Sum of all that has been said is this That though the Magistrate hath the main care of ordering things in the Church yet the Magistrates Power being Cumulative and not Privative the Church and her Officers retain the Fundamental Right of inflicting Censures on Offenders Thus much concerning the Superior Clergy containing the Arch-Bishops and Bishops I come now to treat of the Inferior Clergy under which are comprehended Deans Arch-Deacons Parsons Vicars Prebends and Chaplains SECONDLY OF THE INFERIOR CLERGY IT is to be known that of Spiritual Functions there be three Degrees 1. A Function which hath a Jurisdiction 2. A Spiritual Administration with a Cure 3. They who have neither Cure nor Jurisdiction Of these in their Order 1. Of a Function which hath a Jurisdiction UNder this Rank may be placed Deans and Arch-Deacons 1. Deans Dean in Latine Decanus which is derived of the Greek Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Co. Lit. 9â— a. that signifieth Tâ—â— for that he is an Ecclesiastical Secular Governor and was anciently over ten Prebends or Canons at the least Howbeit in England we use to call him a Dean that is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church and the rest of the Society or Corporation we call Capitulum the Chapter Now Co. Lit. 95. a. Of Chapters there be in our Law two kinds viz. The Antient and the Latter And the Latter be of two sorts 1. Those which were translated or founded by King Henry the Eighth in place of Abbots and Covents or Priors and Covents which were Chapters whilst they stood and these are new Chapters to old Bishopricks 2. Where the Bishoprick was newly founded by
f. 97. a 134. a. 344. a. Co. 2. Inst. f. 3. Stat. 25. E. 1. Carlisle that all arch-Arch-Bishops and Bishops of England have been founded by the Kings of England and therefore it hath been declared in Parliament that the Holy Church of England was founded in the State of Prelacy within this Realm by the King and his Progenitors But here then may be queried who were the first Founders of the Bishopricks in Wales It is answered 10. H 4.6 b. Co. Litt. 97. â—â—o 2. Inst. f. 195. On the Stat. of West 1. c. 17. That the Bishopricks in Wales were founded by the Princes of Wales and the Principality of Wales was holden of the King of England as of his Crown and when the Prince of Wales committed Treason Rebellion c. the Principality was forfeited and the Patronages of the Bishops annexed to the Crown of England So as the King is to have Pensions for his Chaplains and Corodies for his Vadelers of them as of Bishops founded by himself 2. To whom the Custody of the Spiritualties and Temporalties of Bishops do appertain Sede Vacante Co. 2. Inst 15. West 1. c 21. Magna Charta 5. Prerog Regis c. 14. Rolls Abr. 2. p. f. 223. THe Custody of the Temporalties of every Arch-Bishop and Bishop says Coke within the Realm and of such Abbies and Priories as were of the King's Foundation after the same became void belonged to the King during the Vacation thereof by his Prerogative For as the Spiritualties belonged during that time to the Dean and Chapter de Communi Jure or to some other Ecclesiastical Person by Prescription or Composition so the Temporalties came to the King as Founder And this doth belong to the King being Patronus Protector Ecclesiae in so high a Prerogative incident to his Crown as no Subject can claim the Temporalties of an Arch-Bishop or Bishop when they fall by Grant or Prescription 3. How Bishops were and how now made IT is apparented by our Books of Law and History Co. Lit. f. 134. a. 344. a. Co. Lib. 3 Dean and Chapt. of Norwich 's case Rolls Rep. 2. part f. 102. Davy's Rep. f. 46. a. de Capitulariter congregatis that at the first all the Bishopricks in England were Donative per Traditionem Baculi i. e. the Crosier which was the Pastoral Staff and Annuli the Ring whereby he was married to the Church King Henry the first being requested by the Bishop of Rome to make them elective refused it But King John by his Charter bearing Date Quinto Junti Anno Decimo Septimo granted that the Bishopricks should be Eligible which afterwards was confirmed by divers Acts of Parliament And afterward the manner and order as well of Election of Arch-Bishops and Bishops as for the Confirmation of the Election and Consecration is enacted and expressed in the Statute of the Twenty fifth of Henry the Eighth But by the Statute of the thirty first of Henry the Eighth and the first of Edward the Sixth they were made Donative by the King's Letters Patents Both which Statutes are repealed and the Statute of the twenty fifth of Henry the Eighth doth yet remain in full force and effect 4. Their Jurisdiction what and whence derived AS to the Jurisdiction and Authority that appertains to Bishops are considerable two Particulars 1. Whence this Jurisdiction is derived 2. The Extent and Subject Matters of this Jurisdiction 1. Whence derived The King of England is and of Right always was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his Dominions And this is evident our by Books The Right Reverend Prelate Matthew Parker Arch-Bishop of Canterbury a man very expert in matters of Antiquity affirms in his Book set forth in Latin Anno Domini Co. lib. 9. Hensloes Case 1573. Quod Rex Angliae olim erat Conciliorum Ecclesiasticorum praeses vindex temeritatis Romanae Propugnator Religionis nec ullam babebant Episcopi Authoritatem praeter eam quam a Rege acceptam referebant Jus testamenti probandi non habebant Administrationis potestatem cuique delegare non poterant It was resolved in the Tryal touching Legitimation Davy's Reports f. 51. b. 52. a. and Bastardy that although all Matrimonial Causes have been a long time determinable in the Ecclesiastical Courts and are now properly within the Jurisdiction and Cognisance of the Clergy Vide Davy's Reports Le Case de Premunire 97. b. 98. a. Yet Ab Initio non fuit sic For as well Causes of Matrimony as Causes Testamentary were Civil Causes and apertained to the Jurisdiction of the Civil Magistrate as it is well known to all Civilians until the Christian Emperors and Kings for the honouring of Prelates of the Clergy have granted or allowed to them the Cognizance and Jurisdiction in those Cases And therefore the Kings of England although they have allowed the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertained to their Cognizance yet by the Rules of the Common Law he hath a Superintendency upon their proceeding with power of Direction when and how they shall proceed and of Restraint and Correction if they proceed not duely and orderly in many Cases as it is manifested by the Writs of several natures directed to the Bishops whereby the King commands them to certifie Bastardy Excommunication Profession Accouplement in Loyal Matrimony Of Admitting Clerks De Cautione Admittenda c. And also by Writs of Prohibition Consultation and Attachments for Prohibition 2. What is their Jurisdiction For the deciding of Controversies says Sir Edward Coke and distribution of Justice there be two distinct Jurisdictions The one Secular and General for that it is guided by the common and general Law of the Realm Co. Lit. f. 96. a. The other Ecclesiastical limited to certain spiritual and particular Cases and the Court wherein the Causes are handled is called Forum Ecclesiasticum in which the Bishops are Judges and immediate Officers to the King's Courts of Justice in Causes Ecclesiastical Now the Spiritual or Ecclesiastical Causes accarding to the usage and custom of England are Blasphemy Apostacy from Christianity Heresies Schisms Holy Orders Admissions Institution of Clerks Celebration of Divine Service Rights of Matrimony Divorces General Bastardy Subtraction and Right of Tithes Oblations Obventions Dilapidations Excommunication Reparation of Churches Probate of Testaments Administrations and Accounts upon the same Symony Incest Fornications Adulteries Sollicitation of Chastity Pensions Procurations Appeals in Ecclesiastical Cases Commutation of Penance All which are determined by Ecclesiastical Judges That the Reader may the better know the Extent and Latitude of the Episcopal Jurisdiction and Authority let him take with him these Rules that I have met withal in our Books 1. Rule That where the Right is Spiritual Co. Lit. 96 a. and the Remedy therefore only by the Ecclesiastical Law the Cognisance thereof doth appertain to the
The Court of the Arches Jt is called in Latin Curia de Arcubus which is the chiefest and ancientest Consistory that belongeth to the Arch-Bishop of Canterbury for the debating of Spiritual Causes So called of the Church in London where they sit and hold this Consistory called Bow-Church which is in Latin Arcuum Ecclesia and called Sancta Maria de Arcubus Which Church was dedicated to our Lady and had that Denomination at first of Bow-Church by reason of building of the top of the Steeple Bow-wise or Arch-wise like so many Bows bent The Judge of this Court is called Dean of the Arches because with this Officialty is commonly joyned a peculiar Jurisdiction of thirteen Parishes in London termed a Deanry being exempted from the Authority of the Bishop of London and belonging to the Arch-Bishop of Canterbury Of which the Parish of Bow is one and the chief because the Court is there kept 4. The Court of Audience The Court of Audience says Coke is kept by the Arch-Bishop in his Palace and medleth not with any matter between Party and Party of contentious Jurisdiction but dealeth with matters pro Formâ as Confirmations of Bishops Elections Consecrations and the like And with matters of Voluntary Jurisdictions as the granting of the Guardianship of the Spiritualties Sede Vacante of Bishops Admission and Institution of Benefices dispensing with Banes of Matrimony and such like 5. The Court of Faculties This Court belongeth to the Arch-Bishop And for the granting of Faculties there is under him an especial Officer called Magister ad Facultates The Master of the Faculties Now a Faculty in the Common Law is used for a Privilege or especial Power granted unto a Man by Favour Indulgence and Dispensation to do that which by the Common Law he cannot do As to eat Flesh upon days prohibited to marry without Banes first asked to hold two or more Ecclesiastical Livings the Son to succeed the Father in a Benefice and such like 6. The Court of Peculiars The Arch-Bishop of Canterbury hath a Peculiar Jurisdiction in divers Parishes within the City of London and other Diocesses c. 7. The Consistory Courts of the Arch-Bishops and Bishops Consistory says one is the Counsel-House of Ecclesiastical Persons and it is a word borrowed of the Italians 〈…〉 f. 338. or rather the Lombards and signifies as much as Tribunal It is Vocabulum utriusque Juris and is used for the place of Justice in the Courts Christian or Spiritual The Consistory Court of every Arch-Bishop and Bishop in every Diocess in Ecclesiastical Causes is holden before his Chancellor or before his Commissary in places of the Diocess far remote and distant from the Bishop's Consistory so as the Chancellor cannot call them to the Consistory without great Travels and Vexation And he is called Commissarius Foraneus From these the Appeal is to the Arch-Bishop of either Province respectively Official Note Officialis in the Canon Law is especially taken for him to whom any Bishop doth generally commit the Charge of his Spiritual Jurisdiction And in this sence one in every Diocess is Officialis Principalis whom the Statutes and Laws of this Kingdom call Chancellor 32. H. 8. c. 15. The rest if there be more are by the Canon Law called Officiales Foranci but with us are termed Commissaries 8. The Court of the Arch-Deacon or his Commissary This Court is to be holden where and in what places the Arch-Deacon by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Arch-Deaconry And from him the Appeal is to the Diocesan He is called Oculus Episcopi 9. The Court of Delegates This Court is so vulgarly called because these Delegates do sit by force of the King's Commission under the Great Seal upon an Appeal to the King in the Court of Chancery in these Causes 1. When a Sentence is given in any Ecclesiastical Cause by the Arch-Bishop and his Official 2. When any Sentence is given in any Ecclesiastical Cause in places exempt 10. The Court of the Commissioners of Review Ad Revidendum Albeit the Acts of 24. H. 8. c. 12. and 25. H. 8. c. 19. do upon certain Appeals make the Sentence definitive as to any Appeal yet the King after such a definitive Sentence as Supreme may grant a Commission of Review ad Revidendum C. 4. Inst 341. And so it was resolved in the King's Bench. Trin. 39. Eliz. Hollingworth's Case Thus much may suffice to have been spoken concerning the Episcopal or Ecclesiastical Courts I proceed to the Sixth Particularity 6. By whom only Bishops are commanded to certifie IT is to be known that none but the King's Courts of Record Co. Litt. 〈…〉 4. 〈…〉 10◠〈◊〉 2. 〈…〉 325. as the Court of Common Pleas the King's Bench Justices of Goal-Delivery and the like can write to the Bishop to certifie Bastardy Mulierty Loyalty of Matrimony and the like Ecclesiastical Matters For 't is a Rule in Law that none but the King can write to the Bishop to certifie and therefore no inferior Court as London Norwich York or any other Corporation can write to the Bishop to certifie but in those Cases the Plea must be removed into the Court of Common Pleas and that Court must write to the Bishop and then remand the Record again And this was done in respect of the Honour and Reverence which the Law gave to the Bishop being an Ecclesiastical Judge and a Lord of Parliament by reason of the Barony which every Bishop hath And this was the reason a Quare Impedit did lie of a Church in Wales in the County next adjoyning for that the Lordships Marchers could not write to the Bishop neither shall Cognizance be granted in a Quare Impedit because the Inferior Court cannot write to the Bishop And herewith agreeth Antiquity Nullus alius praeter Regem potest Episcopo demandare inquisitionem faciendam Bracton 7. Bishops Proceedings in Ecclesiastical Courts under the Name Style Seal of the Bishops how warrantable At the Session of Parliament holden Anno 4 o. Jac. Co. 2. I◠〈…〉 685 686. 〈◊〉 Lib. 12 〈◊〉 upon a Branch of an Act made at the first Session in the first Year of King James his Reign for Continuance and Reviving divers Statutes it was enacted that an Act made in the first Year of Queen Mary Stat. 2. c. 2. entituled An Act for Repeal of certain Statutes made in the time of King Edward the sixth should stand repealed and void A doubt was moved concerning the Bishops which was divided into two Questions 1. Whether any Bishop made especially since the first day of that first Session of Parliament were lawful or no 2. Whether the Proceedings in the Bishops or other Ecclesiastical Courts being made under the Name Style and Seal of the Bishops were warranted by Law And the reason of these two Doubts was this By the Statute of 1 E. 6 c. 2. it was enacted that Bishops should not be Elective
as before that time they had been but Donative by the King's Letters Patents Secondly By the said Act is provided that all Summons Citations and Process in Ecclesiastical Courts should be made in the Name and Style of the King and that their Process should be sealed with a Seal of the King's Arms c. And it was strongly urged that this Act of the first of Edward the Sixth was now in force and consequently all Bishops made at the least since it became of force by Election c. and not by Donation according to the said Act of the first of Edward the Sixth are unlawful and all their Process Proceedings being in their own Names Styles and Seals where by the said Act they ought to have been in the King's Name and under his Seal were all unlawful and void And to prove that the said Act of Ann. 1. Ed. 6. was now in force they alledged that this Act of the first of Edward the Sixth was repealed by the said Act of the first of Mary above mentioned which Act of Repeal being repealed by the said Branch of the first of Jacobus consequently the said Act of the first of Edward the Sixth was thereby revived For when an Act of Repeal is repealed the first Act that was repealed is revived and herewith agreeth the Book-Case in the fifteenth of Edward the Third Tit. Petition Pl. 2. And this is true and cannot be denied The King having understanding hereof and being informed of the Consequents thereof being matters tending not only to the infinite prejudice of his Subjects in Cases of great Importance especially if any Diocess had no Lawful Bishop or Ordinary but to the scandal and impeachment of his Majesty's Justice not only in those Proceedings but also in Administration of Justice in certain Cases in his Courts of Common Law at Westminster commanded his two Chief Justices to consider of the said Objections and to inform him of the true State thereof that either the scruple conceived might be cleared and satisfied or the Inconvenience if any were timely provided for and prevented who upon timely consideration had of the said Objection agreed the Law to be as the said Case was put as it had been taken But upon further search and consideration had other manifest and direct matters were found to satisfie and clear the said scruple and question which afterwards was agreed and resolved accordingly by the Chief Baron and other Judges then attending in the Upper House of Parliament For the understanding whereof it is to be observed that the said Act of the first of Edward the Sixth was repealed by three several Acts of Parliament viz. 1. By the said Statute of Ann. 1. Mar. in the whole 2. By the Act of 1. 2. Ph. Mar. c. 8. by sufficient words as concerning the Name Style and Seal of their Process c. And Lastly By the Statute of 1. Eliz. c. 1. the whole Act of 1. E. 6. is also repealed For Leges posteriores priores contrarias abbrogant And as a Man that is strongly bound with three Cords or Ligaments albeit one or two of them be untied or cut asunder remains bound notwithstanding by and with the second or third which remain firm and untouched so a Statute repealed by force of three several Acts remains repealed so long as any of them remain in force albeit one or two of them be made void And therefore although the Act of 1. Mar. be repealed by 1. Jac. yet the other two Acts remaining in force the Act of Ann. Prim. E. 6. remains repealed First therefore As to the Name Style and Seal c. in Ecclesiastical Courts it is enacted by the 1. 2. Ph. Mar. c. 8. in these words And the Ecclesiastical Jurisdiction of the arch-Arch-Bishops Bishops and Ordinaries to be in the same state for Process of Suits punishment of Crimes and Execution of Censures of the Church with knowledge of Causes belonging to the same and as large in those points as the said Jurisdiction was in Ann. 20. H. 8. By which Clause if the Act of Repeal of 1. Mar. now repealed had never been made the Act of 1. E. 6. as to the Name Style and Seal in Ecclesiastical Proceedings had been repealed by this latter Act of 1. 2. Ph. Mar. Secondly But it was objected that the Act of 1. 2. Ph. Mar. which is the second Cord or Ligament is repealed by the Act of 1. Eliz. c. 1. To this it was answered and resolved that this second Cord or Ligament remains in force for true it is that the Act of 1. Eliz. repeals the Act of 1. 2. Ph. Mar. Secundum quid but not Simpliciter for the Act of 1. Eliz. doth repeal every Branch and Article of 1. 2. Ph. Mar. other than for such Branches as therein be excepted And afterwards by another Branch of the said Act of 1. Eliz. it is enacted that all other Laws and Statutes repealed and made void by the said Act of 1. 2. of Ph. Mar. and not in that Act specially mentioned and revived should stand remain and be repealed and void as the same were before the making of that Act. But that Act of 1. Ed. 6. as it hath been often said is sufficiently repealed by the Act of 1. 2. Ph. Mar. as to the Name Style and Seal c. and the Act of 1. Ed. 6. is not specially mentioned and revived by the Act of 1. Eliz. so the same remain repealed by the Act of 1. 2. Ph. Mar. Thirdly The third Act which clearly repeals and annuls the Act of 1 Ed. 6. as well for the making and constituting Bishops as for the Name Style and Seal of Process is the Act of 1. Eliz. c. 1. for that Act doth revive the Act of 25. H. 8. c. 20. and further enacteth that the same shall stand in full force and effect to all intents Constitutions and Purposes By which Act of 25. H. 8. it is enacted as followeth And that of every Avoidance of any Arch-Bishoprick or Bishoprick the Kinâ— his Heirs and Successors may grant to the Prior and Covent or to the Dean and Chapter a License under the Great Seal as of old time hath been accustomed to proceed to an Election of an Arch-Bishop or Bishop with a Letter Missive containing the Name of the Person which they shall elect and chuse c. And according to this Statute revived by Ann. 1. Eliz. all Arch-Bishops and Bishops at this day be made and if they were made according to the Act of 1. E. 6. they were unlawful And further it is enacted by the said Act of 25 H. 8. That every Person chosen elected invested and consecrated Arch-Bishop or Bishop according to the form and effect of this Act c. shall do and execute in every thing and things touching the same as any Arch-Bishop or Bishop of this Realm c. might at any time heretofore
do Which later Branch doth extend to all Process and Proceedings in Ecclesiastical Courts and that the same shall be in such sort as the same were before the Act of 25. H. 8. and before that Act the Name Style and Seal of their Process c. were as now they be And the said Act of 1. Eliz. reviving the Act of 25. H. 8. doth impliedly repeal the Act of 1. E. 6. which had repealed the 25. H. 8. in both the said points For as by repealing of a Repeal the first Act is revived so by reviving of an Act repealed the Act of Repeal is made of no force 8. The Bishops with what Council assisted Every Bishop is assisted with a Council For Co. Lib. 3. Le cafe del Dean Chapiter f. 75. a. seeing it was impossible that the Church of God should continue without Sects and Heresies it was in Christian Policy thought necessary that every Bishop should be assisted with a Council and with a Chapter and that for two Reasons 1. To consult with them in matters of difficulty and to assist the Bishop in deciding of Controversies in point of Religion And to this purpose every Bishop hath a Chair 2. To consent to every grant the Bishop shall make to bind his Successors for the Law did not judge it reasonable to repose such Confidence in him alone At first all the Possessions were to the Bishop after a certain Portion was assigned to the Chapter therefore the Chapter was before they had any Possessions And of Common Right the Bishop is Patron of all the Prebends because their Possessions were derived from him So that so long as the Bishoprick continues the Dean and Chapter being his Counsel remains though they have no Possessions as at first they were when the Bishoprick consisted all of Spiritualty Of their Dominion and Property HEretofore Bishops with the Confirmation of the Dean and Chapter Co. Litt. 44. a. might have made Leases for Lives or Years without Limitation or Stint And so might they have made Gifts in Tall and Estates in Fee at their Will and Pleasure Whereupon not only great decay of Divine Service but Dilapidations and other Inconveniences ensued and they were disabled and restrained by several Acts of Parliament to make any Estate or Conveyance to the King at all or to the Subject but there is excepted out of the Restraint or Disability Leases for three Lives or twenty one Years with Reservation of Rent and with other Provisions and Limitations To be short as the Bishops cannot utterly divest themselves of their Lands and Revenues so ought not their Rights to be liable to the Sacrilegious Rapine of others for Quod datum est Ecclesiae Deo datum est Which sacred Maxim the Roal Martyr very well understood when he used these very words viz. There are ways enough to repair the Breaches of the State without the Ruines of the Church as I would be a Restorer of one so I would not be an Oppressor of the other under the pretence of Publick Debts The Occasions contracting them were bad enough but such a discharging of them would be much worse I pray God neither I nor mine may be accessary to either And indeed well might this most Religious Prince thus pray for without doubt the Sin of Sacrilege is a very horrid Crime Proximum Sacrilegio Crimen est quod Majestatis dicitur Treason is a petty Sin in respect of Sacrilege St. Austin seems to give the Reason Tanto gravius est peccatum quanto committi non potest nisi in Deum Thou that abhorrest Idols committest thou Sacrilege Which words of the Apostle St. Paul are specially to be noted by them that pretend mainly against Superstition and Idolatry yet are hotly set for Sacrilege Further As this Sin of Sacrilege in its own Nature is very abominable so it is dangerous more ways than one 1. To private Men that commit it Make them like a Wheel as Stubble before the Wind fill their faces with shame who said Let us take the Houses of God to our selves in possession Psal 83. 2. To more publick Persons even to the Heads and Principal Members of the Commonwealth the Kings and Princes thereof see Daniel c. 5. concerning Belshazzar Our own Annals tell us of King William Rufus and his Nephew the Son of Robert Duke of Normandy both slain in Hunting in the same Forest that the Conqueror his Father and Grandfather to his Nephew had made and himself had augmented with the utter Ruin of many Chappels Churches and Religious Houses 3. To the Commonwealth it self This Sin in Achan became not a Snare to himself in which he was taken but all Israel was troubled by the sin of that one Achan Joshua c. 7. But after all this it may be demanded of me whether this will take away the nature of sin from the Alienation of Church-Lands that it is done by a National Assembly of the States in Parliament I answer that this will not take from Sacrilege the nature of sin that it is done by a National Assembly giving their Sanction thereunto for the Proceedings and Sanctions of a National Council must be by Rule from God otherwise they become more out of measure sinful than Actions of like Quality in private Men. The Laws of State are not therefore just because enacted by the State but when they agree with the common Rules of Justice that God has bestowed upon the Sons of Men. To conclude To do that by a Law which should be enacted for prevention of Sin and not for Commission is to make it the more sinful Shall the Throne of Iniquity have Fellowship with thee that frameth mischief by a Law 10. What the King hath after the Death of every Bishop IT appeareth by many Records in the Reign of Henry the Third Co. 2. Inst. 491. 1. Co. 4. Inst f. 388. and Edward the Second that by the Law and Custom of England no Bishop could make his Will of his Goods or Chattels coming of his Bishoprick c. without the King's License The Bishops that they might freely make their Wills yielded to give to the King after their Deceases respectively for ever six things 1. Their best Horse or Palfrey with Bridle and Saddle 2. A Cloak with a Cape 3. One Cup with a Cover 4. One Bason and Ewer 5. One Ring of Gold 6. His Kennel of Hounds For these a Writ issueth out of the Exchequer after the Decease of Every Bishop 11. Bishopricks whether Saleable AS In omni re nascitur res quae ipsam rem exterminat Co. 2. Just f. 15. as the Worm in the Wood or the Moth in the Cloth and the like so often times no Profession receives a greater blow than by one of their own Coat For Ranulph an Ecclesiastical Person and King William Rufus his Chaplain was a Factor for the King in making Merchandize of Church-Livings in as much as when any Arch-Bishoprick Bishoprick or Monastery became
void First He perswaded the King to keep void a long time and converted the Profits thereof sometime by Letting and sometime by Sale of the same whereby the Temporalties were exceedingly wasted and destroyed Secondly after a long time no man was preferred to them per Traditionem Annuli Baculi by Livery of Seizan as the old fashion was but by Bargain and Sale from the King to him that would give most by means whereof the Church was stuffed with unworthy and insufficient Men and many Men of lively Wits and towardliness in Learning despairing of Preferment turned their Studies to other Professions This Ranulph for serving the King's Turns was advanced first To be the King's Chancellor and after to be Bishop of Durham Who after his Advancement to so high Dignities made them Servants to his Sacrilegious and Symoniacal Designs King Henry the First seeing this mischief and foreseeing the great inconvenience that would follow thereupon was contented for his own time to bind his own hands to the end the Church now naked and bare might receive some comfort and have means to provide things necessary for their Profession and Calling He thereupon at his Coronation made a Charter to this effect Vide Magna Charta c. 1. Quia Regnum oppressum erat injustis exactionibus ego in Respectu Dei amore quem erga vos omnes habeo Sanctam Dei Ecclesiam imprimis liberam facio Ita quod nec vendam nec ad firmam ponam nec Mortuo Archiepiscopo sive Episcopo vel Abbate aliquid accipiam de Domino Ecclesiae vel hominibus ejus donec Successor eam ingrediatur omnes malas Consuetudines quibus Regnum Angliae opprimebatur inde aufero He committed the said Ranulph then Bishop of Durham to Prison for his intolerable Misdeeds and Injuries to the Church where he lived without love and died without pity saving of those that thought it pity he lived so long I will close this Section with a Sentiment of the Imperial Law touching buying and selling Non pretio C. 1.3.31 sed precibus ordinetur Antistes Tantum ab ambitu debet esse sepositus ut quaeratur cogendus rogatus recedat invitatus effugiat sola illa suffragetur necessitas excusandi Profecto enim indignus est Sacerdotio nisi fuerit ordinatus invitus Nemo gradum Sacerdotii pretii venalitate mercetur quantum quisque mereatur non quantum dare sufficiat aestimetur Episcopus non pretio sed precibus ordinandus est Gothofredus 12. Their Right of Sitting in Parliament THe Spiritual Lords do sit in the King 's great Council in Parliament by the same Right that the Temporal Lords do and that is by reason of their Ancient Baronies For although originally all the Possessions of Bishops Abbots and Priors were given and holden in Frankalmoigne yet shortly after the Norman Conquest their Tenures were altered viz. Per Baroniam as appeareth by Mathew Paris Anno 1070. 66. and of that Tenure have continued ever since as shall be apparented by the Consultations of Clarendon in the Reign of Henry the Second by Glanvil and other Authorities In the Constitution held at Clarendon Co. 2. Inst f. 6. tempore H. 2. Ann. 1164. Certain Recapitulations of the Prerogative of the King and his People then sought to be infringed by the Pope and his Clergy it is thus expressed in the eleventh Article Archiepiscopi Episcopi universa persona Regni qui de Rege tenent in Capite 〈…〉 possessiones suas de Rege sicut Baroniam inde respondeant Justatiarii◠〈…〉 Regis sicut Caeteri Baroâ—â—â— debeam interesse Curiae Regis cum Baronibus qâ—â—usquâ— perveniatur ad diminutionem Membrorum vel mortem 2. Glanvil the most ancient Writer of the Laws of this Realm now extant 〈…〉 hath these words Notandum autem quod nec Episcopus nec Abbas quia eorum Baroniae sunt de Elcemesyna Regis Antecessoris ejus non possunt de Dominicis suts aliquam partem dare ad Remanentiam sine assensu Confirmatione Domini Regis 3. My third Authority shall be a notable Record in the Reign of Henry the Third and it is this Mandatum est omnibus Episcopis qui Conventuri sunt apud Glocestriam die Sabba thi in Crastino Sanctae Katharinae firmiter inhibendo quod sicut Baronias suas Rot Pat. 〈◊〉 3.2 part 〈◊〉 de Proâ—â—â—â—â—â—e fact Epiâ—â— quas de Rege tenent diligunt nullo modo praesumant Consilium tenere de aliquibus quae ad Coronam Regis pertinent vel quae personam Regis vel Statum suum vel Statum Concilii sui contingunt Scituri pro certo quod si fecerint Rex inde se capiet ad Baronias suas 4. Mr. Cambden in his Britannia tells us that the two Arch-Bishops and all the Bishops of England be Barons of the Kingdom and Parliament unto whom by Right and Custom it appertains as to Peers of the Kingdom to be with the rest of the Peers personally present at all Parliaments whatsoever there to consult to handle to ordain decree and determine in regard of the Baronies which they hold of the King For William the first a thing the Church-men of that time complained of but those in the Age ensuing accounted it their greatest Honour ordained Bishopricks and Abbies which hold Baronies in pure and perpetual Alms and until that time were free from all Secular Service to be under Military or Knight-Service enrolling every Bishoprick and Abbey at Will and Pleasure and appointing how many Soldiers he would have every one of them to find for him and his Successors in the time of Hostility and War From that time ever since says he those Ecclesiastical Persons enjoyed all the Immunities that Barons of the Kingdom did saving only they were not to be judged by their Peers 5. Sir Edward Coke in several places of his Works asserts Co. 2. Inst f. 3 79 585. Co. Lit. 97. a. 94. a. Câ— 4 Inst f. 361. that the Bishops of England have been founded by the Kings of England and do hold of the King by Barony and have been all called by Writ to the Court of Parliament and are Lords of Parliament To what has been said in the proof of the Bishops Right of sitting in Parliament this may be added Judge Dâ—dâ—idg in his Treatise of Nobility concerning Barons by Tenâ—re That it appeareth by all ancient Writers of our Laws and Histories that the Arch-Bishops and Bishops of the Realm in the antient Saxons days as well during the time that this Realm was divided into divers Kingdoms as also after the uniting of them into one Monarchy were called to the Parliament or Assembly of States or Wise Men not so much in respect of their Tenure for in those days all their Tenures were as is said before by Frankalmoigne but especially for that Laws and Counsels of Men are then most currant and commendable and have a more blessed
Henry the Eighth as Chester and Bristow c. there the Chapters are also new There is a great Diversity between the coming in of the Antient Deans and the New For the Antient come in in much like sort as Bishops do For they are chosen by the Chapiter by a Cogue de Eslier as Bishops be and the King giving his Royal Assent they are confirmed by the Bishop But they which are either newly translated or founded are Donative and by the King's Letters Patents are installed Note The Word Dean is also applied to divers that are the Chief of certain peculiar Churches or Chappels As The Dean of the Ring 's Chappel The Dean of the Arches The Dean of St. Georges Chappel in Windsor The Dean of Bocking in Essex The Corporation consisting of Dean and Chapter they may joyntly purchase Lands and Tenements to the use of their Church and Successors And every one severally likewise may purchase to the use of himself and his Heirs Grants at this day Co. Lic 342. a. made by a Dean and Chapter or any other having any Spiritual or Ecclesiastical Living are restrained by Act of Parliament so as they cannot grant any Rent-Charge or make any Alienation or any Leases to bind their Successors other than for Term of twenty one Years or three Lives in Possession whereupon the accustomed Rent or more shall be reserved 2. Arch-Deacons Arch-Deacons in Latine Archi-Deacanus and in Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ex 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Princeps 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Minister is styled Oculus Episcopi Whose Court is to be holden as is said before where and in what places he either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Arch-Deaconry And from him the Appeal is to be Diocesan It has been resolved Hobart 's Reports Hutton 's Case that if a Suit be before an Arch-Deacon whereof by the Statute of the twenty third of Henry the Eighth the Ordinary may license the Suit to an higher Court that the Arch-Deacon cannot in such Case bawlk his Ordinary and send the Cause immediately into the Arches For he hath no power to give a Court but to remit his own Court and to leave it to the next For since his Power was derived from the Bishop to whom he is subordinate he must yield it to him of whom he received it And it was said that so it had been ruled heretofore 2. Of a Spiritual Administration with a Cure UNder this Form I place Parsons and Vicars 1. Parsons Parson in Legal Signification is taken for the Rector of a Church Parochial and is called Persona Ecclesiae because he assumeth and taketh upon him the Parson of the Church and is said to be siezed in Jure Ecclesiae And the Law had an excellent end herein viz. That in his Person the Church might sue for and defend her Right and also be sued by any that had an elder and better Right And when the Church is full it is said to be Plena Consulta of such a one Parson thereof that is full and provided of a Parson that may Vicem seu personam ejus gerere Persona Impersonata Parson Impersonate Co. Lit. 300. b. is the Rector that is in Possession of the Church Parochial be it Presentative or Impropriate and of whom the Church is full To every Church-Presentative there is a Patron and it is he that hath the Advowson of a Parsonage belonging to his Mannour or otherwise in Gross and thereby may or ought to give the same Benefice or present thereto when and as often as it falleth void And that is in case of Death Resignation Deprivation or Session as by taking a Benefice incompatible And this being Patron had beginning for the most part by one of these three ways namely Either by reason of the Foundation for that the Patron or his Ancestors Co. Lit. 119. b. or those from whom he claims were Founders or Builders of the Church Or By reason of Donation for that they did endow or give Lands to the same for maintenance thereof Or else By reason of the Ground because the Church was set or builded upon their Soil And many times by reason of them all three 2. Vicars For the beginning of Vicaridges the difference betwixt a Vicaridge and an Advowson and the several sorts of Vicaridges I refer my Reader to Davy's Reports f. 83. a. Cro. 2. p. s 518. and I shall only give him some little Information concerning Vicaridges by shewing him somewhat of Impropriations Impropriations or Appropriations were says my Author when those Houses of the Romish Religion and those Religious Persons as Abbots Priors and such like had the Advowson of any Parsonage to them and to their Successors and obtained License of the Pope and of the Ordinary and King that they themselves and their Successors from thenceforth should be Parsons there and that it shall be from thenceforth a Vicaridge and that the Vicar should serve the Cure And so at the beginning Appropriations were made only to those Persons Spiritual that could administer the Sacraments and say Divine Service As Abbots Priors Deans and such like After by little and little they were enlarged and made to others As namely to a Dean and Chapter which is a Body Corporate consisting of many which Body together could not say Divine Service And which was more To Nuns that were Prioresses of some Nunnery which was a wicked thing In so much as they could neither administer Sacraments nor preach nor say Divine Service to the Parishioners And all this was for pretence of Hospitality and maintenance thereof And to supply these defects a Vicar was devised who should be Deputy to the Priors or to the Dean and Chapter and also at the last to the said Abbots and others to say Divine Service and should have for his labour but a little Portion and they to whom the Appropriations were made should retain the greater Revenues and they did nothing for it By means whereof Hospitality decayed in the place where it ought to have been chiefly maintained namely in the Parish where the Benefice was and where the Profits did grow And so it continues to this day to the great hinderance of Learning to the Impoverishment of the Ministery and to the Infamy of the Gospel and Professors thereof To this Learning of Impropriations I shall add the very words of him that was the Glory of his Age and Nation In mine Opinion Lord Bacon and Sense says he I must confess let me speak it with Reverence that all the Parliaments since the twenty seventh and thirty first of Henry the Eighth who gave away Impropriations from the Church seem to me to stand in a sort obnoxious and obliged to God in Conscience to do somewhat for the Church to reduce the Patrimony thereof to a Competency For since they have debarred Christs Wife of a great part of her Dowry