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
for the defence of the True Faith against those Hereticks who belched out their Blasphemies against the Holy Trinity and the Humane Nature of our Saviour the First whereof was at Nice another after that at Constantinople consisting of a hundred and fifty Bishops the Third at Ephesus of two hundred Bishops the Fourth at Chalcedon where many hundreds of Bishops were present and they all with an unanimous Consent confirmed all those Decrees which were made in the Nicene Council These Four Synods says the said Canon are so to be observed by the Church of Christ ut Quatuor Christi Codices There were many other Synods about the same time but these Four were of the best Authority At Jerusalem in the First Century the Apostles Elders and Brethren held a Council against some Pharisees touching Circumcision in the Fourth year of the Reign of the Emperour Claudius The Apostles celebrated also certain Councils for the substituting of Matthias in the place of Judas Act. 1. For the Election of Seven Deacons Act. 6. For not pressing the Ceremonial Law Act. 15. 11 For the toleration of some Legal Observations only for a time Act. 21. 18. To these some will have to be added a Meeting by the Apostles wherein was composed the Apostles Creed Also another Assembly of the Apostles which did obtrude to the Church 85 Canons under the notion of the Apostles Authority concerning which there are various Controversies In this Century there were also Two Synods summoned in Asia for the Reformation of the Churches and Consecration of Bishops at which John the Evangelist was present Euseb lib. 3. cap. 20. At Ancyra in Galatia in the Second Century was Assembled a Synod of divers Bishops wherein the Figments of Montanus were confuted In this Synod Montanus was Excommunicated and his Heresie condemned Euseb lib. 5. cap. 14. In this Century viz. An. 195. Six several Synods were held about the Observation of Easter viz. At Rome in Victors time at Caesarea in Palestina at Pontus in France where Irenaeus was chief in Ostroena and at Ephesus In all which Synods it is observed That the Bishop of Rome had no more Authority than the other Bishops Euseb lib. 5. cap. 23. In the Third Century there were Eight or Nine Synods of Remark viz. At Bastra where Beryllus was confuted by Origen at Rome in the time of Fabianus where the Schism of Novatus was removed another at Rome in the time of Cornelius wherein Novatus the Heretick was condemned at Antioch where Novatus was condemned again at Carthage which erred about the Re-baptizing of Hereticks at Iconium for receiving of Hereticks after Repentance at Antioch again where Samosatenus was condemned this was about the Twelfth year of Galienus Another at the same place under Aurelianus where he was condemned again and deprived of his Church And at Sinuessa consisting of 300 Bishops where Marcellinus Bishop of Rome was condemned for denying Christ and sacrificing to Idols Tom. 1. Concil At Ancyra in the Fourth Century about the year 308 were assembled Bishops of divers Provinces to constitute a form of Ecclesiastical Discipline according to which they who had Sacrificed to Idols in time of Persecution were to be received again upon their Repentance In this Council also it was Ordained That Chorepiscopi that is Countrey-Bishops or Vicarii Episcoporum should abstain from Ordination of Elders and Deacons and from usurping of dominion over the Preaching Elders who were in Cities This Council was subscribed by Eighteen Bishops At Nicea in Bithynia Assembled by the Authority of Constantine the Great a General Council consisting of 318 Bishops The exact time when it began Historians do not agree some conceive it was A. D. 325. So Hillar Socort l. 2. c. 29. Others 359. So Baron N. 27. Others 330. and others referr the year to 333. But Eusebius computeth it to be in the Twentieth year of Constantines Reign It was also in the time of Julius the First and Silvester Popes Three things especially are reported to be condemned by this Famous Council 1. The Arrian Heresie Blasphemously denying to Son to be Co-eternal and Co-essential with the Father 2. The dissent of the Eastern from the Western Christians about the celebration of the Passover in a manner different from the Jewish Custome and it was concluded in this Council That the Feast of Easter should be kept on the Lords Day and not on the Fourteenth day of the First Month of the Jews called Nisan 3. The Schismatical dissentions of the Melitians and Novatians In this Council the Emperour burnt all the Accusations which the Bishops brought against each other as unworthy to be seen Of this Council it is anciently Recorded That Constantinus Imperator congregavit in Nicaea Civitate 318. Episcopos ex omnibus Nationibus ad Confirmandum fidem Catholicam Ita in Tertio Can. AElfrici ad Wulfin Episcop At Tyrus in the Fourth Century was conven'd a National Council by Constantine the Emperour in the Thirtieth year of his Reign wherein were 60 Bishops from Egypt Lybia Asia and Europe the major part whereof were Arrians who charging Athanasius with false Accusations deposed him in his absence whose Deposition Arsenias subscribed with the same hand which the Arrians alledged was cut off by Athanasius At Gangra in Paphlagonia about the year 324. were assembled about Sixteen Fathers in which Council were damned the heretical Opinions of Eustathius who admiring the Monastick life or favouring the heresie of Eucratitae and the Manichaeans spake against Marriage and eating of Flesh and damned the publick Congregations for the Service of God in Temples saying a man could not be saved unless he forsook all his Possessions About this time there was a Council at Antiochia wherein the Arrians deposed Eustatius As also a Council at Arles wherein Cecilianus was absolved from the Accusation of the Donatists At Eliberis in Spain in the time of Constantines Reign were assembled 19 Bishops and 36 Presbyters Among the 81 Canons made in this Synod it was Ordained in the 36 Canon That nothing that is worshipped should be Pictured on a Wall and that in Private Houses no Idols should be found At Carthage the First Council there wherein St. Cyprian with the Advice of many other Bishops of Numidia Lybia and other parts of Africa Ordained those who were Baptized by Hereticks to be Rebaptized was not held under the Reign of Constantine for that St. Cyprian was Martyred in Valexians daies the Eighth Persecuting Emperour but the first Council of Carthage held in Constantines daies was that wherein the Donatists condemned Cecilianus Bishop of Carthage whose innocency was made afterwards to appear At Antioch the First Council there was held by Arrians under the Reign of Constantinus Son of Constantine in the year 340 or 344. This being one of the Councils which either determine Heretical Opinions or raise up Schisms and Troubles to
I do allow the Printing of this Book entituled An Abridgment of the Ecclesiastical Laws FRA NORTH Imprimatur hic Liber cui Titulus AN ABRIDGMENT OF THE. ECCLESIASTICAL LAWS Guil. Sill R. P. D. HENR Episc Lond à Sacris Dom. Repertorium Canonicum OR An Abridgment OF THE ECCLESIASTICAL LAWS OF THIS REALM Consistent with the TEMPORAL WHEREIN The most Material Points relating to such Persons and Things as come within the Cognizance thereof are succinctly Treated Principio Comperto facile est adjicere Reliquum Cooptare Tho. Cana. in Proaem Decret nu 3. T. 1. By JOHN GODOLPHIN LL. D. LONDON Printed by S. Roycroft for Christopher Wilkinson at the Black Boy against St. Dunstan's Church in Fleetstreet 1678. THE Introduction THE Question which King Henry the Eighth did once put to both the Universities of this Realm viz. An aliquid Authoritatis in hoc Regno Angliae Pontifici Romano de jure competat plusquam alii cuicunque Episcopo Extero being Resolved in the Negative and that Resolution ratified in the Convocation An. 1534. an Act of Parliament passed about two years after for the extinguishing of that Papal Authority in this Realm This succceded so well in consequence of what the Convocation An. 1530. had before acknowledged him viz. The Supream Head on Earth of the Church of England that that Supremacy was likewise after confirmed by Act of Parliament to him his Heirs and Successors This is that Supremacy here tenderly touch'd at in the first Chapter of the ensuing Abridgment and without which all that follows would be but insignificant and disfigured Cyphers When King Henry the Eighth was thus both Parliamentarily and Synodically invested herewith although it was with all the Priviledges and Preheminences incident thereto yet no more accrued to the Crown thereby than was legally inherent in it before yet in regard of the Usurpations that in divers Kings Reigns had successively invaded the Rights of the Crown in that most splendent Jewel thereof another Convocation in An. 1532. to give the King as it were Livery and Seisin of the said Supremacy promised him in verbo Sacerdotii That they would not from thenceforth Assemble in any Convocation or Synod without his Majesty's Writ nor make any Canons or Constitutions without his License and consent nor execute the same until they were Ratified under the Great Seal of England All which was done without the least diminution of any Archiepiscopal or Episcopal Power or Priviledges in the free exercise of that Ecclesiastical Jurisdiction which they anciently enjoyed The whole of this Design being only to eject the Roman Pontifex and annul his Usurpation in a matter of that weighty Consequence to which the Crown was so undoubtedly Entituled And this only in a way consonant to that Allegiance which every Subject without distinction owes to his lawful Sovereign in all matters as well Ecclesiastical as Civil within his Majesty's Realms and Dominions whereby the Clergy as well as Laity being all Subjects alike might be reduced not only to their Primitive Obedience unto but also to their Dependance on their own Sovereign in preference to any Forein Potentate whatever That the Supream Civil Power is also Supream Governour over all Persons and in all Causes Ecclesiastical is a Rule says the Learned Bishop Taylor of such great necessity for the conduct of Conscience as that it is the measure of determining all Questions concerning the Sanction of Obedience to all Ecclesiastical Laws the duty of Bishops and Priests to their Princes the necessity of their paying Tribute and discharging the burthens and relieving the necessities of the Republick It was never known says the same Author in the Primitive Church that ever any Ecclesiastical Law did oblige the Catholick Church unless the Secular Prince did establish it The Nicene Canons became Laws by the Rescript of the Emperour Constantine says Sozomen When the Council of Constantinople was finished the Fathers wrote to the Emperour Theodosius and petitioned Vt Edicto Pietatis tuae confirmetur Synodi sententia The confirmation of the Canon and Decrees of the great Council at Ephesus by the Emperour is to be seen at the end of the Acts of the Synod And Marcian the Emperour wrote to Palladius his Prefect a Letâer in which he testifies that he made the Decrees of the Council of Chalcedon to become Laws Ea quae de Christiana fide à Sacerdotibus qui Chalcedone âconvenerunt per nostra Praecepta Statuta sunt c. Thus also the Fathers of the Fifth General Synod petitioned Justinian to confirm and establish their Canons into a Law The same Prince also Published a Novel in which he commands Vim Legum obtinere Ecclesiasticos Canones à quatuor Synodis Nicena Constantinopolitana prima Ephesina prima Chalcedonensi expositos confirmatos Vid. Concil Tolet. All which confirms it for a Truth That even in the Primitive Church the Supremacy in matters Ecclesiastical was in the Supream Secular Prince Touching Archbishops our Malmesbury confesses that in the Ancienter times of the Britains it was unknown where the Archbishoprick was At the Council of Arles An. 314. Silvester the Pope is but plain Bishop as appears by the Nomenclature of those that were at that Council The High Title of Archbishop was for a long time in use in the Eastern Church before it came into the West For whereas our Beda tells us That Augustine was Ordained Archbishop of the English Nation by Etherius Archbishop of Arles aforesaid he therein follows the mode of speaking current in his own times for Gregory the then Pope in his several Letters written to them affords neither of them that Title no not when he bestows the Pall upon Augustine and gives him the precedency and priority in respect of York and all other Bishops of Britain Yet the incomparable B. Vsher affirms that they did not quite deny Archbishops among the Old Britains for he proves they had such but that all Memorials were lost where the Archiepiscopal or Patriarchal Seat resided For although London hath been for many Ages the Chiefest of Britain and was no less than 1300 years since reputed Vetus Oppidum and Augusta yet a Modern Writer of great Learning and Authority would have York as the more Ancient Metropolis of the Diocess of the Britains and that not only because it was a Roman Colony which London was not as Onuphrius contrary to so great and plain Authority of Tacitus doth affirm but also for that the Emperours Palace and Praetorium likewise Tribunal or chief Seat of Judgment was there whence by the Old Historian Spartianus it was called Civitas by way of excellency It must be acknowledg'd that the very Original of things are to us much clouded in obscurity and uncertainty yet he that duly consults Antiquity will find That what Radulphus de Diceto writes touching the Original of Episcopacy and Archiepiscopacy in Britain seems to have
external Priesthood in which Power is given by Divine Institution to Consecrate the Eucharist c. In which Decree the Synod doth also condemn those who say all Christians are Priests or have equal Spiritual power which is nothing but to confound the Ecclesiastical Hierarchy which is in an Order as an Army of Souldiers To which Hierarchical Order do belong especially Bishops who are Superiour to Priests Therefore one of the said Anathematisms did reach those who say that there is not an Hierarchy instituted in the Catholick Church by Divine Ordination consisting of Bishops Priests and Ministers The Historian of the aforesaid Council of Trent tells us That the Sixth of the said Eight Anathematisms was much noted in Germany in which an Article of Faith was made of Hierarchy which word and signification thereof says he is Alien not to say contrary to the Holy Scriptures and though it was somewhat Anciently invented yet the Author is not known and in case he were yet says he he is an Hyperbolical Writer not imitated in the use of that word by any of the Ancients and following the style of the Primitive Church it ought says he to be named not Hierarchy but Hierodiaconia or Hierodoulia But Thomas Passius a Canon of Valentia said in that Council That all doubt made of the Ecclesiastical Hierarchy did proceed from gross ignorance of Antiquity it being a thing Notorious that in the Church the People have alway been governed by the Clergy and in the Clergy the Inferiours by the Superiours until all be reduced unto one Universal Rector which is the Pope of Rome and that it was plain that the Hierarchy consisteth in the Ecclesiastical Orders which is nothing but an holy Order of Superiours and Inferiours But Francis Forrier a Dominican of Portugal at the same time said That Hierarchy consisteth in Jurisdiction and the Council of Nice placeth it in that when it speaketh of the Bishop of Rome Alexandria and Antioch and therefore the handling of Hierarchy not to be joyned with that of Order Others were of a Third opinion viz. That Hierarchy was a mixture of both viz. of Order and Jurisdiction also Thus was that Learned Council divided in this high point of Hierarchy that though they all agreed the thing yet they could not agree wherein to fix it whether in Order or in Jurisdiction or in both Notwithstanding it is generally agreed That the Hierarchy of the Catholick Church is proved by the Testimony of all Antiquity and by the continual use of the Church and that it consisteth of Prelates and Ministers who are Ordained by Bishops in whom resides the power of Consecration which may be a sufficient warrant for this digression Which Consecration as it refers to Persons is done per impositionem manuum except as to Virgins for they also by the Pontifical Law are Consecrable Creatures though they be Foolish Virgins yea though they be Polluted Virgins provided it be not per spontaneam voluntariam pollutionem and there be but putativa Virginitas in the case and shall have not only Laureolam Virginitatis but also Velum Consecrationis as they call it Cajetan in Sum. V. Virgin consecrat Less de Just. Jur. lib. 4. c. 2. Dub. 16. alii DD. But where the Consecration refers to Things as Churches Chappels Bells and other things of the like sound there it is done per preces together with other Consecration-ceremonies the Episcopal Order therein concurring so likewise the Consecration of Virgins is per preces together with other Ceremonies used in the Consecration of Virgins Cujus Signum est quod in Pontificali Romano ubi de hac Consecratione agitur non dicatur roganda de aliqua contaminatione sed de vita conscientia carnis integritate ut notat Cajetanus Less ubi sup That which is next in view is some prospect of Deans and Chapters there were it seems in former times certain Deans who usurped an Authority beyond their Dignity or Function and took upon them to exercise Episcopal Jurisdiction These were condemn'd in a Council at Lateran under Pope Alexander by the fifth Canon of that Council in these words viz. Quoniam quidam in quibusdam partibus sub pretio statuuntur qui Decani vocantur pro certa pecuniae quantitate Episcopalem Jurisdictionem exercent praesenti Decreto statuimus ut qui de caetero id praesumpserit Officio suo privetur Episcopus conferendi hoc officium potestatem amittat Chron. Gervas de Temp. H. 2. Anciently likewise there were certain Deans which were called Decani Christianitatis one of which kind appears in an Ancient Record nigh Four hundred years since relating to the Priviledges of the Priory of St. Austins wherein the words to this present purpose sic se habent viz. Super Privilegiis Innocentii Papae 4. hic superius ad mandatum conservatorum ut praetactum est publicatis Thomas Prior Ecclesiae Christi Cant. Guydo Prior S. Gregorii Thomas Decanus Christianitatis ejusdem Civitatis eadem Privilegia inspexisse ad certitudinem futurorum testati sunt Chron W. Thorn de Temp. Ed. 1. An. 1293. Heretofore also Priors have been called Deans so we find Ceolnothus or Chelnothus in the time of King Ethelred and his Brother Alured Dean of Canterbury to have been called Postea Ceolnothus Cantuariensis Ecclesiae Decanus c. ubi cum Decanus esset quem nos Priorem vocamus non modicum videre solebat Conventum And again Egelnothum alias Ceolnothum ejusdem Ecclesiae Christi Decanum vel Praepositum suum Decanum vocabant quem nos post adventum Lanfranci Priorem appellamus Gervas Act. Pontif. Cant. And where we meet with the word Decania as in the History of Ranulphus Bishop of Durham in the Conquerors time written by Simeon the Monk Deconatus is thereby intended it being the Ecclesiastical Dignity of him qui in Majori Ecclesia denis ad minus Canonicis sive Praebendariis ut vocant sub Episcopo praeest but the DECANVS CHRISTIANITATIS aforesaid so called per Antiquiores Anglos is secundum recentiores DECANVS RVRALIS quem Exteri ARCHIPRESBYTERVM VICANVM vocant De quo de Vrbano vid. Duaren de Sacr. Eccl. minist benef lib. 1. cap. 8. A probable conjecture why anciently he might be called Decanus Christianitatis we may ut mihi videtur have from Mr. Selden in Notis ad EADMERUM pag. 208. Christianitas says he ea quae ad Christianitatem pertinent passim apud Eadmerum atque alios illius aevi Scriptores functionem Episcopalem atque Fori sacri actionem administrationem seu Officium Episcopale ut usitatius appellatur denotant Hinc apud nos Fora sacra quibus jure nempe communi subnixis aut Episcopi praesunt aut ii qui eo nomine Episcopos utpote quos provocare licet suscipiunt Curiae Christianitatis etiamnum vocitantur Glossar Hist Angl. Antiq. ver Christianitas vid. plura in
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
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-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
Plurality of Benefices is there forbidden as a vice smelling of Avarice and Ambition dangerous and prejudicial to the People whose Souls are neglected by such Pastours One of the chiefest Reasons why the Law forbids Pluralities is because it enjoyns Residence both which are inconsistent in the same Incumbent Aquinas says That the having of Two Benefices is not intrinsecally evil or Malum in se nor that it is altogether indifferent but carries in it a species of Evil yet so as that upon due Circumstances it may be capable of a qualified lawfulness Aquin. quod-lib 9. art 15. To the many Inconveniencies which the Law doth specifically observe to follow upon Pluralities this may not impertinently be added That thereby the pious Intention of Founders is frustrated The Council of Trent hath these words of it Haec Pluralitas est perversio totius Ordinis Ecclesiastici Concil Trid. Sess 24. cap. 17. Pope Alexander the Third said That Pluralitas Beneficiorum certum continet animarum periculum c. Quia in tantum 7. de Praebend The Canonists speaking of this Subject in reference to Dispensations to salve the matter if possible and bring both ends together have found out a very prety distinction of Beneficia Incompatabilia primi generis and Incompatabilia secundi generis But we are not concern'd in that Distinction In that Council of Trent it was said by the Bishop of Bitonto That Plurality of Benefices unknown to the First Ages was not brought in by the Court of Rome but by Bishops and Princes before the Popes took upon them to regulate the matter of Benefices throughout all Christendom Yet the Author of the History of the said Council of Trent lib. 2. says That Clement the Seventh Commended to this Nephew Hippolitus Cardinal de Medicis in the year 1534. all the Benefices of the world Secular and Regular Dignities and Parsonages Simple and with Cure being vacant for Six months to begin from the first day of his possession with power to convert all the Profits thereof to his own use The waies whereby an Ecclesiastical Benefice may be acquired are not many but the Causes for which an Ecclesiastical person may thereof be Deprived are very many generally they may all be reduced to these Three Heads 1 By the Disposition of the Law 2 By the Sentence of the Judge or 3 By a free and voluntary Resignation which though it be not properly a Deprivation yet it is an amission of the Benefiee Deprivation by the disposition of the Law is either by reason of some Crime whereunto the penalty of Deprivation ipso facto is by the Law annexed or by reason of accepting another Benefice Incompatible The Pontifical Law adds Two more which do not concern us viz. Ingress into Religion and Matrimony The Crimes that incurr Deprivation are many but they must be proved for the Beneficed party is not bound sponte sua to quit his Benefice ante Sententiam Judicis Less de Benefic cap. 29. Dub. 8. And when a man is not Jure Privatus but only Privandus in that case his Benefice cannot be bestowed on another unless a Privative Sentence be first pronounced by the Judge If a person Beneficed be long absent and Non-resident from his Benefice the Benefice is not by reason of such long Absence void ipso Jure but the Law in that case also requires a Judicial Sentence of Deprivation and that only post trinae Citationis in eorum Ecclesiis publice Edictum Gloss in c. Quoniam ut lite non contestata c. One of the chiefest Reasons in Law why Pluralities are prohibited is for the prevention of Non-residence as appears by the Third Canon of the Lateran Council which Canon after it prohibits the having of divers Ecclesiastical Dignities or more Parochial Churches than one it makes provision against Non-Residence in these words viz. Cum igitur vel Ecclesia vel Ecclesiasticum Ministerium committi debuerit talis ad hoc persona quaeratur quae Residere in loco curam ejus per seipsum valeat exercere Quod si aliter Actum fuerit qui receperit quod contra Sacros Canones acceperit amittat qui dederit largiendi potestate privetur Likewise by the Thirteenth Canon of that great Council of One hundred and eighty Bishops Assembled at Rome by Pope Alexander the Third in the year of our Lord 1180. it was Ordained That such persons should be preferr'd to Ecclesiastical Dignities as shall be actually resident with their people and undertake the Cure of their Souls by doing the work of their Ministry in their own persons otherwise to deprive them of the Office and Benefice conferred on them and they who do conferr them without these Conditions let them lose the right of conferring Offices and Benefices By this appears how strict and exact the Law is against Non-Residence in the Romish Church One of the most famous Abbots and Monasteries in Britain anciently seems to be that of Bangor in Flintshire whereof Ranulphus Cestrensis says that Tradunt nonnulli Pelagium fuisse Abbatem apud Famosum illud Monasterium de Bangor This Monastery which Ranulphus speaks of is by our Beda called Bamornabyrig lingua Anglorum in quo says he tantus fertur fuisse numerus Monachorum ut cum in Septem portiones esset cum Praepositis sibi Rectoribus Monasterium divisum nulla harum portio minus quam Trecentos homines haberet qui omnes de labore manuum suarum vivere solebant But concerning Abbots having nothing to do with them nor they with us it being also well known what once they were in this Kingdom and what now they are where the Pope doth exercise his Jurisdiction it may here suffice only to observe That the word Abbates hath anciently had a wide and far different signification from what we now commonly understand thereby for in and among the Laws of King Aethelstan we find the words quatuor Abbates to be taken according to the Glossographist thereon for quatuor hebdomadas That Law directs how and in what manner the Hundred Court shall be held the words are Hoc est judicium qualiter HUNDREDUM teneri debeat In primis ut conveniant semper ad quatuor ABBATES faciat omnis homo Rectum alii which the Glossary calls Locum plane mendosum and by the quatuor Abbates will have quatuor hebdomadas to be understood which is the more probable by what appears in one of the Laws of King Edward Father of the said Aethelstan who began his Reign in An. 901. being the Son of King Alured the words of which Law are Volo ut omnis praepositus habeat GEMOTUM semper ad QUATUOR EBDOMODAS efficiat ut omnis homo rectum habeat omne placitum capiat terminum quando perveniat ad finem By the word Gemotum in that place is meant Conventus Publicus Concilium but chiefly Placitum as appears by the 107th Law
inhaerentes quenquam in Ecclesia per pecuniam ordinari auctoritate Apostolica prohibemus ibid. And at another Council Conven'd at Westminster in the year 1175. under the Reign of King H. 2. it was Ordain'd that all Simoniacal Patrons should be deprived of their Right of Presentation for ever Nulli liceat Ecclesiam nomine dotalitii ad aliquem transferre vel pro Praesentatione alicujus personae pecuniam vel aliquod emolumentum pacto interveniente recipere Quod si quis fecerit in jure vel convictus vel Confessus fuerit ipsum tam Regia quam nostra freti auctoritate Patrocinio ejusdem Ecclesiae in perpetuum privari Statuimus Can. 8. vid. Chron. Gervas de Temp. H. 2. It is Reported of the Emperour Henry Son of Conradus that in his youth he accepted of a Silver Pipe from a certain Clerk on this Promise and Agreement That when he should be made Emperour he should bestow a Bishoprick on the said Clerk the which he after did accordingly when he became Emperour but not long after the Emperour being surpriz'd with Sickness and his Disease increasing he lay sensless and speechless for three days and so rapt as it were out of the Body that he lay as one dead the Bishops appointed a Three days Fast for the Emperours Recovery which having obtain'd he doth immediately by a Decree of the Council degrade the Bishop whom he had Simoniacally so made for a Silver Pipe for it was confessed by all that heard hereof That he was among the Devils during the space of all those Three daies wherein he lay as dead those Devils all that while darting fiery Flames through a Pipe into his mouth whereby his whole body became but as one Firebrand in comparison whereof our Material Fire here on Earth was but as congeled Ice to it c. As you like this so you may have more out of the same Infallible Author viz. Jo. Bromton in Chronico suo At a Council Assembled at Mantua by the Emperour Henry the Fourth in the year 1066. by the Third Canon of that Council it was Ordain'd That whosoever was admitted to a Church Office willingly and wittingly by a Simoniack person should be removed from his Order And by the Sixth Canon of the same Council it was likewise Ordain'd That no Ecclesiastical Office or Benefice should be sold for Money but freely given Also by the Seventh Canon of the Council at Rome consisting of 180 Bishops in the year 1180. under Pope Alexander the Third it was Ordain'd That no Reward be taken for admitting men to Spiritual Offices and that no money be taken for Blessing them that are Married or for Administration of any other Sacrament For at this time Marriage was counted a Sacrament of the Roman Church He that Simoniacally enters on an Ecclesiastical Living aim'd at something worth money he cannot be supposed to intend principally the Ministery of Souls who comes to that Office instructed only with a bag of Money In Ireland there is a Custome of receiving Oblations at the Baptism of Infants but if the Priest shall refuse to Baptize the Infant till he be secured of his Money he is a direct Simoniack for then he sells the Sacrament at a price certain It is Recorded in History of Henricus Auceps that when he fought against the Hungarians he made a Vow to God That if he would give him Victory he would purge his Countrey of Simony Epiphanius The precedent Evils of Sacriledge and Simony are no further punished than as they are reduced into act and practice but Heresie which in the method of the subsequent Abridgment next follows and as within the Ecclesiastical Cognizance is more speculative having its Seat more in the Head than in the Hand and consequently of the more pernicious quality in regard of its poysonous venom in these more noble parts the Head and Heart nor is it only the poyson of the Soul fatal in whom it is but it is also the plague and Leprosie of the Soul dangerously infectious to others in whom but very lately it was not This Heresie may be defin'd to be a Publish'd Opinion repugnant to the Principles of our Christian Faith obstinately maintain'd and persisted in by such as profess the Name of Christ and so Hereticks are distinguish'd from Atheists and Infidels properly so called albeit in a sense they have somewhat of both the other in them He seems to give it an adequate definition that made one for it by the true interpretation of the Greek word Haeresis Graece Electio Latine est sententia humano sensu Electa Scripturae Sacrae contraria palam docta pertinaciter defensa And he seems to give the Heretick an apt comparison who made one for him by the Mole which is a Beast blind with a black but smooth outside lurking in holes working under ground and spoyling the best Land In the black List or Catalogue of Hereticks which you meet with in its proper Chapter of the ensuing Abridgment you will not find all those Heresies mentioned by Epiphanius contr Haeres lib. 2. being purposely omitted for brevities sake because they were like abortive Births and continued not long to disturb the Peace of the Church Heresies of old as of late days have ever crept into the Church under a double pretence the one of zeal to the Glory of God the other of a detestation of Sin the Devil would cease to be the Old Serpent if after so many thousand years experience he were now to learn how to wheedle and deceive the Nations It is observable that whenever and wheresoever the Light of the Gospel hath appear'd in any more than ordinary lustre and purity there immediately the Devil hath exerted the utmost of his power and policy to obscure that Light by cauâing Clouds of Error to gather in that Element where the Gospel so increased in purity and splendor and whenever he desists from this practice let him no more be styled The Prince of Darkness whence if Simon Magus were as some say the Father of Hereticks you may guess who their Grandfather is for according to the infernal genealogy the Father of Lies must needs be the Grandfather of Heresies In this ensuing Abridgment therefore you have one Chapter of Blasphemy and Heresie as being also within the sphear of Ecclesiastical Cognizance they are plac'd together in regard of that affinity they have each to other for many of them are Cosin-Germans but one degree of a Lie removed or rather are Brethren in Iniquity for they have both the same Father Ye are of your Father the Devil c. he abode not in the Truth says our Saviour of the Jews that believed not many of whom Blasphemously said of him That he had a Devil and was mad Others of them were foretold of by St. Peter That they privily should bring in damnable Heresies even denying the Lord that bought them c. wresting the Scriptures unto their
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
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
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
traditur in Commendam quasi comeditur devoratur and such a Benefice may properly be given in perpetuam Commendam Summa summar tit Commenda art 1 2. And by the Rule of the Canon Law he that comes in per Commendam is not Praelatus sed Procurator tantum est nisi Custos seu Administrator jus in Ecclesia non habet 6. Decretal c. Nemo Constit Othobon de Commendis fo 65. And therewith agrees 27 H. 8. 15. where it is said That the Cardinal of York had the Abbey of St. Albans in Commondam and yet was not the Abbot In this Case of a Commendam in Davis Rep. the Original or invention of a Commendam is ascribed to Pope Leo 4. An. Dom. 848. aut eo circiter as appears lib. Decretal caus 23. q. 2. where it is said Vnde Leo 4. scribit Qui plures Ecclesias retinet unam quidem Titulatam alteram vero sub Commendatione tenere debet For by the Ancient Canons and Councils a man could have but one Benefice and yet it is by experience found convenient that sometimes viz. in case of Necessity or Vtility of the Church a man may have the Charge and Fruits of more Benefices than one therefore was that Distinction invented and allowed that although a man shall have but one Benefice in Titulo yet he may have other Benefices in Commenda viz. That another Benefice may be commended and committed to his Custody and Cure until it be provided with an able Incumbent But afterwards there being great Abuses found in the granting of these Commendams by the Ordinaries for omnium rerum quarum est usus potest esse abusus virtute solum excepta says Aristotle another Canon was made in the Council of Lions An. Dom. 1274. for reformation thereof as appears lib. 6. Decretal de Elect. Elect. potesta c. Nemo Nemo deinceps Parochialem Ecclesiam alicui non Constituto in legitima aetate vel Sacerdotio Commendare praesumat nec tali nisi unam evidenti Necessitate vel Vtilitate Ecclesiae suadente Hujusmodi autem Commendam rite factam declaramus ultra Semestre temporis spatium non durare c. But the Gloss there saith That Ista Constitutio non comprehendit Romanum Pontificem ideo Romanus Pontifex potest Perpetuo Commendare So that the Pope notwithstanding that Canon had power to give Benefices in perpetuam Commendam And indeed after the said Council of Lions as the Pope had reserved to himself the sole power of giving Benefices in perpetuam Commendam so he reduced that power into act and used and practised the same in all Realms of Christendom Specially the Popes that were resident at Avignon in France in the times of King H. 2. Ed. 1. Ed. 2. Ed. 3. were very liberal not only in granting these Provisions contrary to our Statutes made in the times of King Ed. 1. Ed. 3. but in giving all sorts of Ecclesiastical Benefices in Commendam perpetuam And as at first it was done for the support of the Dignity of Cardinals as Pope Clement 6. professed in his Epistle to Ed. 3. Hist Walsingham fo 150. b. yet afterwards these Favours were purchased by other Ecclesiastical persons of all degrees in all Nations specially in England and Ireland And whereas the Canon Law says That a man hath a Cononical Title by virtue of a Commendam that must be understood de Commenda perpetua and not de Commenda Temporali for the Commenda Temporalis is but a kind of Sequestration and may be granted by every Ordinary pro tempore Semestri and therefore such a Commendatary non est Praelatus nec Maritus Ecclesiae nec facit Fructus suos sed est Administrator tantum Custos Ecclesiae And such a Commenda non est titulus nec facit titulum sed est quoddam depositum until the Church be provided with a sufficient Incumbent and therefore such a Commenda is commonly granted when the Patron doth not Present an able person or when the Church is Litigious But the Commenda perpetua which continues during the life of the Commendatary cannot be granted by any inferiour Ordinary but only by the Pope in such Countries where he hath Jurisdiction or by the King or his Delegates in this Realm or such whose power therein is derived from him or confirmed by him And this Commenda est titulus Canonicus nam militat eadem ratio in perpetuis Commendis quae in aliis Titulis Lib. 6. de Electionib c. Nemo And so it hath been often adjudged in Rota as Gomez affirms in Regul de Trien Possess where he argues this point Pro Con at large and where he saith That the Faculty of a perpetual Commendam is amplissima dispositio habet ubertatem verborum viz. Licentiam Facultatem fructus omnes percipiendi in proprios usus Convertendi c. Quae verba important Collationem Titulum non Simplex Depositum CHAP. XXII Of Lapse 1. What a Lapse is the gradations and Original thereof 2. The difference between the Canon and Common Law as to the time of Lapse and when the Six months shall begin 3. The King is Patron Paramount of all tbe Churches in England 4. In what Cases the Patron is to take notice of the Avoidance at his peril or not and how the Six months is to be computed by the days 5. A Lapse is not an Interest but a Trust or Administration and may not be transferr'd or granted over 6. How or from what time the Six months shall be computed before the Lapse incurr 7. Whether a Bishop may Collate by Lapse after Six months upon failure of the Clerks shewing his Letters of Orders or his Letters Missive or Testimonial 8. In what case Tempus occurrit Regi in point of Lapse 9. In what cases the King having Title of Lapse may lose his Presentment 1. LApsus or Lapse is a slip or departure of a Right of Presenting to a void Benefice from the Original Patron neglecting to Present within Six months next after the Avoidance to the Ordinary Whence it is commonly said That that Benefice is in Lapse or Lapsed whereunto he that ought to Present hath omitted or slipped his opportunity This Lapse may happen and be the Patron being ignorant of the Avoidance as well as if he were acquainted therewith or privy thereto except only upon the Resignation of the former Incumbent or the Deprivation upon any cause comprehended in the Statute of 13 Eliz cap. 12. In which cases the Bishop ought to give notice thereof unto the Patron In this matter of Lapse there are Three gradations ab Inferiore ad Superiorem after the neglect of the true Original Patron upon whose default 1 the Bishop of the Diocess within whose precincts the vacant Benefice lies shall Collate unless the King be Patron 2 If the Bishop Presents not within the next Six months then the Metropolitan shall Present And
Immunitatibus gaudeant quibus Milites Burgenses Parliamenti Ant. Brit. fo 284. nu 30. 6. The Jurisdiction of the Convocation in this Realm though relating to matters meerly Spiritual and Ecclesiastical yet is subordinate to the establish'd Laws of the Land it being Provided by the Statute of 25 H. 8. c. 19. That no Canons Constitutions or Ordinances shall be made or put in execution within this Realm by Authority of the Convocation of the Clergy repugnant to the Prerogative Royal or to the Customes Laws or Statutes of this Realm To the same effect was that of 9 Ed. 1. Rot. Parl. Memb. 6. Inhibitio Archiepiscopo omnibus Episcopis aliis Praelatis apud Lambeth Conventuris ne aliquid statuant in praejudicium Regis Coronam vel dignitatem For although the Archbishop and the Bishops and the rest of the Clergy of his Province Assembled in a Synod have power to make Constitutions in Spiritual things yet they ought to be Assembled by Authority of the King and to have as aforesaid his Royal Assent to their Constitutions which being had and obtained the Canons of the Church made by the Convocation and the King without Parliament shall bind in all matters Ecclesiastical as well as an Act of Parliament as was Resolved in Bird and Smiths Case Although the Saxons who founded and endowed most of our Churches and made many good Laws in reference to the Jurisdiction power and priviledges thereof yet the Royal Prerogative with the Laws and Customes of the Realm were ever so preserved as not to be invaded thereby King AEthelbert the first Saxon King King Ina AEthelstane Edmund Edgar and King Kanute all these made Laws in favour of the Church but none of them ever entrenched on the Prerogative of the Crown or on the Laws or Customes of the Realm nor any of those ancient Church-Laws ever made without the Supream Authority to ratifie and confirm the same 7. The Laws and Constitutions whereby the Ecclesiastical Government is supported and the Church of England governed are the General Canons made by General Councils also the Arbitria Sanctorum Patrum the Decrees of several Archbishops and Bishops the Ancient Constitutions made in our several Provincial Synods either by the Legates Otho and Othobon or by several Archbishops of Canterbury All which by the 25 H. 8. are in force in England so far as they are not repugnant to the Kings Prerogative the Laws and Customes of England Also the Canons made in Convocations of Later times as Primo Jacobi Regis and confirmed by his Regal Authority Also in some Statutes Enacted by Parliament touching Ecclesiastical affairs together with divers Customes not written but in use beyond the memory of Man and where these fail the Civil Law takes place Among the Britain Councils according to Bishop Prideaux his Synopsis of Councils Edit 5. those amongst the rest are of most remark viz. At Winchester in King Edgars time under Dunstane at Oxford by Stephen Langton Archbishop of Canterbury at Claringdon under King Henry the Second The Council under King Edward the 6 th in which the 39 Articles of the English Confession was concluded and confirmed The Synod under the same King from which we receive the English Liturgy which now we have composed by Seven Bishops and Four Doctors and confirmed by the publick consent of the Church which as also the said 39 Articles the succeeding Princes Queen Eliz. King James and King Charles ratified and commended to Posterity At London a Synod in which 141 Canons or Constitutions relating to the pious and peaceable Government of the Church presented to King James by the Synod and confirmed by his Regal Authority and at Perth in Scotland where were Articles concerning Administring the Sacrament to the Sick Private Baptism where Necessity requires Confirmation admitting Festivals Kneeling at the Receiving the Sacrament and an allowance of Venerable Customes But de Concil Britan. vid. D. Spelman The Ancient Canons of the Church and Provincial Constitutions of this Realm of England were according to Lindwood the Canonist who being Dean of the Arches compiled and explained the same in the time of King H. 6. made in this order or method and under these Archbishops of Canterbury viz. The Canons or Constitutions 1. Of Stephen Langton Cardinal Archbishop of Canterbury in the Council at Oxford in the year of our Lord 1222 who distinguish'd the Bible into Chapters 2. Of Otho Cardinal the Popes Legate in Anno 1236. on whose Constitutions John de Athon Dr. of Laws and one of the Canons of Lincoln did comment or gloss 3. Of Boniface Archbishop of Cant. 1260. 4. Of Othobon Cardinal of St. Adrian and Legate of the Apostolical Chair on whose Constitutions the said John de Athon did likewise Glossematize His Canons were made at London in Anno 1268. 5. Of John Peckham Archbishop of Canterbury at a Synod held at Reding An. 1279. 6. Of the same Peckham at a Synod held at Lambeth An. 1281. 7. Of Robert Winchelse Archbishop of Canterbury An. 1305. 8. Of Walter Reynold Archbishop of Canterbury at a Synod held at Oxford An. 1322. These Constitutions in some Books are ascribed to Simon Mepham but erroneously for the date of these Constitutions being An. 1322. the said Walter Reynold according to the Chronicle died in An. 1327. and was succeeded by Simon Mepham 9. Of Simon Mepham Archbishop of Cant. An. 1328. 10. Of John Stradford Archbishop An. 13 ... 11. Of Simon Islepe Archbishop An. 1362. 12. Of Simon Sudbury Archbishop An. 1378. 13. Of Tho. Arundel Archbishop at a Synod or Council held at Oxford An. 1408. 14. Of Henry Chichley Archbishop An. 1415. 15. Of Edmond Archbishop of Canterbury 16. Of Richard Archbishop of Canterbury The Dates of the Canons or Constitutions of these Two last Lindwood makes no mention by reason of the uncertainty thereof but withal says it is clear That Richard did immediately succeed the foresaid Stephen Langton and the said Edmond succeeded Richard Lindw de Poen c. ad haec infra in verb. Mimime admittatur If so then it was most probably Richard Wethershed who was Archbishop of Canterbury An. 1229. And St. Edmond Chancellor of Oxford who was Archbishop of Canterbury An. 1234. 8. Councils were either General or Oecumenical from ãâã ãâã ãâã ãâã ãâã whereunto Commissioners by the Emperours Authority were sent from all quarters of the World where Christ hath been preached Or National or Provincial or Particular by Bullenger called ãâã ãâã ãâã ãâã ãâã such were the Councils of Gangra Neo-caesarea and many others commonly Assembled by Patriarchs and Bishops in some particular place of a Countrey The ends of these Councils chiefly were either for the suppression of Heresies the decision of Controversies the appeasing of Schisms or the Ordaining of Canons and Constitutions for decency of Order in the Church Vid. AElfrici Canones ad Wulfinum Episcopum Can. 33. where it is said That there were Four Synods
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
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
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
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 new improvements in their own occupation by culture Pasture and Garden-Fruits only the said Three Orders were exempted from the general payment of all Tithes whatever The Templers and Hospitallers were meer Lay-men yet they were exempted as well as the other Yet the Lateran Council in An. 1215. Ordered That this Priviledge should not extend to Covents erected since that Lateran Council nor to Lands since bestowed on the said Orders though their Covents were erected before that Council Insomuch that when the said Cistercians contrary to the Canons of that Council purchased Bulls from the Pope to discharge their Lands from Tithes King H. 4. Null'd such Bulls by the Stat. of 2 H. 4. cap. 4. and reduced their Lands to a Statu quo These Exemptions from payment of Tithes in this or that particular Religious Order was not known in the World when Aethelwolph Son of Egbert whom he succeeded as King of the West-Saxons gave as aforesaid Tithes of all his Kingdom and that freed of all Tributes Taxes and Impositions as appears by his Charter to that purpose having at a Solemn Council held at Winchester subjected the whole Kingdom of England to the payment of Tithes True it is that long before his time many Acts for Tithes may be produced such as the Imperial Edicts Canons of some Councils and Popes beside such Laws as were made by King Ina and Offa yet the said Edicts and Canons were never received in their full power into England by the consent of Prince and People nor were King Ina and Offa though Monarchs of England as it were in their turns such Kings as conveyed their Crowns to the Issue of their Bodies but the said Aethelwolph was Monarcha Natus non factus and although before his time there were Monarchs of the Saxon Heptarchy yet not successive and fixed in a Family but the said King Egbert being the first that so obtained this Monarchy as to leave it by descent unto his Son the said Aethelwolph he thereby had the more indisputable power to oblige all the Kingdom unto an observance of the said Act. In the said Chapter of Tithes there is also mention made of Mortuaries as having some relation of Tithes wherein is shewed what it is when by and to whom and wherefore to be paid By the Stat. of 21 H. 8. they are reduced to another Regulation than what was in the time of King Henry the Sixth A Mortuary was then the Second best Beast whereof the party died possessed but in case he had but two in all then none due It was called a Corse-Present because ever paid by the Executors though not alwaies bequeathed by the dying party All persons possessed of an Estate Children under Tuition and Femes Covert but not Widows excepted were liable to the payment thereof to the Priest of that Parish where the dying party received the Sacrament not where he repaired to Prayers but in case his House at his death stood in two Parishes it was then divided betwixt them both And it was given in lieu of Personal Tithes which the party in his life time had through ignorance or negligence not fully paid Lindw Cons de Consuetud Such of the ancient Lawyers as were unacquainted with this word Mortuarium in the aforesaid sense as we now use it took Mortuarium only pro derelicto in morte say of it That it is Vocabulum novum harbarum but we understand it better where of Custome it is due and payable These Mortuaries where by the Custome they are to be paid were ever in consideration of the omission of Personal Tithes in the parties Life-time which Personal Tithes were by the Canon Law to be paid only of such as did receive the Sacraments and only to that Church where they did receive them as may be inferr'd plainly from cap. Ad Apostolicae de Decimis But observe says Lessius that in many places these Personal Tithes have been quite taken away and in some places they are paid only at the end of a mans Life as among the Venetians which manner of payment seems to have a great resemblance to these Mortuaries and in some places they are paid only ot the end of the year And in like manner many Predial and Mixt Tithes in divers places are also abolish'd which says he is for the most part done by the permission of the Church where men have been observed to pay them with regret and much against their minds nor hath the Church in such cases thought fit to compel them to it on purpose to avoid scandal Lessius de Just jur lib. 2. cap. 39. Dub. 5. nu 27. And in such places where the Custome is to pay a Personal Tithe when any persons shall Hunt Fish or Fowl to make gain or merchandize thereby and it be neglected to be paid whether Restitution or Compensation by way of a Mortuary where Mortuaries are Customable be in that case due by Law is a Question which by Covarruvies may be well held in the Affirmative Although the face of the Church as well as State began to look with a purer though less Sanguine complexion when Queen Elizabeth adorn'd the Crown than when her Sister wore it yet even in Queen Elizabeths time there crept such abuses into the Church that Archbishop Parker found it necessary to have recourse unto the Power given him by the Queens Commission and by a Clause of the Act of Parliament For the uniformity of Common Prayer and Service in the Church c. whereupon by the Queens consent and the Advice of some of the Bishops he sets forth a certain Book of Orders to be diligently observed and executed by all persons whom it might concern wherein it was Provided That no Parson Vicar or Curate of any Church Exempt should from thenceforth attempt to conjoyn by solemnization of Matrimony any not being of his or their Parish-Church without good Testimony of the Banns being ask'd in the several Churches where they dwell or otherwise were sufficiently Licensed Heyl. Hist of Q. Eliz. An. Reg. 3. Banns or Banna that word Bannum is sometimes taken pro Mandato scil Edicto it is a word of divers significations as appears almost by all the Glossographists and Feudists it sounds sometimes like Edictum sometimes like Mandatum or Decretum and sometimes as here like Proclamatio Saxonibus gebann whence there is their gebannian pro Proclamare edicere mandare ut nostratium Bannes pro Nuptiarum foedere Publicato This Publication of Banns was cautiously ordain'd for the prevention of Clandestine Marriages which were prohibited in this Kingdom above 500 years since as a thing contrary in all Ages to the practice of all Nations and Churches where the Gospel was received and therefore at a Council conven'd at Westminster in the year 1175. by Richard Archbishop of Canterbury under the Reign of King H. 2. it was Ordain'd That no person whatsoever should solemnize Marriage in
Scorto Natus in Ecclesiâm Domini usque ad decimam generationem Yet the Pope doth usually dispence with that Canon specially where such Illegitimates live commendably and follow not the vicious practice of their Parents In illis qui paterna vitia non sequuntur possunt suffragari virtutes quae inducent Sâmmum Pontificem ad Dispensandum si morum honestas eos Commendabiles reddat c. Presbyterorum 56. Distin And lest such should conceive themselves causlesly injured by that Prohibition the Canonists assign three Reasons for it the one is the Dignity of the Clergy and the Sacraments which ought not to be committed to Infamous persons Another is in detestation of their Parents Crime which commonly extends also to their Children The third is the Parents Incontinency and because the Children do for the most part inherit their Parents Vices cap. Si gens Angelorum 56. Distin Yet a Modern Historian speaking of Pope Leo the Seventh An. 935. says out of Luitprandus that Bozon Bishop of Placentia Theobald of Millain and another great Prelate were all the Bastards of Hugo King of Italy by his three Queens Bezola Rosa and Stephana whom he termed Venus Juno and Semalo vid. Prideaux 's Compend Introduct of Hist p. 106. Edit 5. Next follows the matter of Divorce which is the separation of Married persons by force of the Sentence of an Ecclesiastical Judge qualified to pronounce the same Adultery in either party is the common though not the only cause of Divorce Some there are it seems of great Reputation in the Church for this is Quaestio tam Theologiae quam Juris who positively condemn it as unlawful for a Man or Woman to live with their Husband or Wife respectively if either of them be notoriously guilty of Adultery Of which Opinion was St. Hierom saying That a man is Sub maledictione si Adulteram retineat And St. Chrysostome Fatuus iniquus qui retinet Meretricem Patronus enim Turpitudinis est qui celat Crimen uxoris So that it was none of Cato's wisdom nor any great piece of kindness done his Friend Hortensius to lend him his wife Martia whose Chastity deserv'd a better requital Socrates also is reported to be as kind-hearted in this matter as ever Cato was and they are both said to lend their Wives as freely as a man lends an Utensil As these Wife men were beyond the reach of a Diovorce so they were more serious than to blush at Cornutism the common Fate of such Philosophers St. Basil was of Opinion That it was lawful for a Woman still to cohabit with an adulterous Husband to which purpose he made a Canon and commanded it to be done in his Church as appears in his Epistle to Amphilochius 1. Can. 9. 21. This also was the Sentence of St. Austin to Pollentius and in his Book de Adulterinis Conjugiis David received his wife Michal who had lived with another man St. Basil it seems though he be of opinion that the Woman should still live with the Adulterous Husband yet does not think it fit that the man should be so obliged as to his Adulterous Wife The Council of Eliberis refused to give the Sacrament to a Clergy-man that did not instantly expel from his house his Wife whom he knew to commit Adultery And by the Council of Neo-Caesarea he was to be deposed from his Dignity in the same case In the Council of Trent there was a Canon made having an Anathema added to it which condemned those that say That the Bond of Marriage is dissolved by Adultery and that either of the parties may contract another Matrimony whilst the other liveth And by the Fifth Anathematism of that Council 22. July 1563. were condemned Divorces allowed in Justinian's Code which Anathematism was added at the instance of the Cardinal of Lorain to oppose the Opinion of the Calvinists In the same Council upon the Article of Divorce it was said by one of the Fathers there that the Matrimonial Conjunction was distinguish'd into Three parts the Bond the Cohabitation and the Carnal Copulation inferring that there were as many Separations also and that the Ecclesiastical Prelate had power to separate the Married or to give them a Divorce in respect of the Two latter the Matrimonial Bond still standing sure so that neither can marry again Yet the Gospel admits but of one cause of Divorce viz. Fornication which should seem to be understood de Vinculo because Divorce in the other respects may have many Causes Of all Personal Actions within the Ecclesiastical Cognizance that of Defamation seems to be of the tenderest concern if that be observed which Solomon says That a Good Name is to be chosen before great Riches where by Name nothing can be understood other than a mans Credit Fame and Reputation in the World So that the Inference is clear a Defamer is the worst of Thieves the Sacrilegious ones excepted yet were it not for the sweetness of Revenge and the encouragement of the Law such Actions might be better spar'd than what it costs to maintain them and such ill-scented Suits do savour worse being kept alive in a Tribunal than they would by being buried in Oblivion specially if the Defamed considered that to forget Injuries is the best use we can make of a bad Memory This Defamation is not properly that which we call Detractio for Detractio in its proper signification is alienae famae occulta injusta violatio but Defamation though it be an unjust yet it is not an occult violation of another mans Fame or Reputation they have indeed both the same end but they do not both take the same way to that end they both aim and design the extinguishing or diminishing the Credit and Repute which one man hath in the mind and good opinion of another but the one doth it more openly and publickly at least not in so clandestine way as the other This Defamatio is of near affinity to that which we call Contumelia which is an unlawful violation of a persons Honour and Reputation by undecent and false Speeches Gestures or Actions on purpose to disgrace him only in this also they differ that Defamatio may be of one man to another in the absence of the Defamed but Contumelia is not but to the party present vel absenti tanquam praesenti that is in the prrsence of such as have a relative representation of the person Contumeliously so reproached Touching Actions of Defamation there are two Questions raised rather by the Casuists than Canonists the one Whether the Heirs of the Defamer be obliged to make restitution of Dammage to the Defamed in case the Defamer died before satisfaction made the other Whether satisfaction for the dammage done by Defamation be to be made to the Heirs of the Defamed in case he died before such dammages were recovered by him Although both these Questions are answered in the Negative by
for the visitation of the Ecclesiastical State and Persons and for-Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this Parliament be united and annexed to the Imperial Crown of this Realm This Act by a former Clause thereof doth Repeal the Statute of 1 and 2 Ph. Ma. c. 8. whereby the Acts of 26 H. 8. c. 1. and 35 H. 8. c. 3. were repealed so that the Act of Repeal being repealed the said Acts of H. 8. were implicitely revived whereby it is declared and enacted That the King his Heirs and Successors should be taken and accepted the only Supream Head in Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of this Realm as well the Title and style thereof as all Honours Dignities Prebeminencies Jurisdictions c. to the said dignity of Supream Head belonging c. By which Style Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever And by which Statute the Crown was but remitted and restored to its Ancient Jurisdiction which had been formerly usurped by the Bishop of Rome And this is that Supremacy which is here meant and intended 3. The said Statute of 1 Eliz. c. 1. doth not only repeal the said Stat. of 1 and 2 P. M. c. 8. but it is also a reviver of divers Acts asserting several branches of the Kings Supremacy and re-establishing the same it doth likewise not only abolish all Forreign Authority but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm with power to assign Commissioners for the exercise of Ecclesiastical Jurisdiction And then further Enacts to this effect viz. That all Ecclesiastical persons of what degree soever and all and every Temporal Judge Justice Mayor or other Lay or Temporal Officer or Minister and every other person having Fees or wages from the Crown within this Realm or the Dominions thereof shall upon his Corporal Oath testifie and declare in his Conscience That the Kings Majesty is the only Supream Governour of this Realm and of all other his Majesties Dominions and Countries as well in all Spiritual or Ecclesiastical things or causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power superiority preheminence or authority Ecclesiastical or Spiritual within this Realm And therefore doth utterly renounce and forsake all Forreign Jurisdictions powers superiorities and authorities and doth promise that from henceforth be shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to his power shall assist and defend all Jurisdictions priviledges preheminencies and authorities granted or belonging to the Kings Majesty his Heirs and Successors or united or annexed to the Imperial Crown of this Realm The practices of the Romanists in the 4th year of Queen Elizabeth and the danger thereby threatning both the Queen and State occasioned her to call a Parliament 12. Jan. An. 156 2 3 which passed an Act For assurance of the Queens Royal power over all Estates and Subjects within her Dominions By which Statute was enacted The Oath of Supremacy as also what persons were obliged to take it and who should have power to administer the same And this was both the original and the cause of that Oath By the said Statute of 1 El. c. 1. appears also what the penalty is for refusing to take the said Oath as also the penalty of maintaining a Forreign Authority as likewise what other persons than the fore-mentioned shall be obliged to take the said Oath which was afterwards again further ratified and established by the Statute of 5 Eliz. c. 1. 4. The King within his own Territories and Dominions is according to Bracton Dei Vicarius tam in Spiritualibus quam Temporalibus And in the Ecclesiastical Laws of Edward the Confessor the King is styled Vicarius summi Regis Reges regunt Ecclesiam Dei in immediate subordination to God Yea the Pope himself Eleutherius An. 169. styled King Lueius Dei Vicarius in Regno suo 5. The Supremacy which heretofore the Pope did usurp in this Kingdom was in the Crown originally to which it is now legally reverted The Kings Supremacy in and over all Persons and Causes Ecclesiastical within his own Dominions is essentially inherent in him so that all such Authority as the Pope here once usurped claiming as Supream Head did originally and legally belong to the Crown and is now re-united to it by several Statutes as aforesaid On this Supremacy of the King as Supream Head Sr. Edward Coke grounds the power of granting a Commission of Review after a Definitive Sentence in the Delegates for one Reason that he gives is because after a Definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commission Ad Revidendum And such Authority as the Pope had claiming as Supream Head doth of right belong to the Crown Quia sicut Fontes communicant aquas fluminibus cumulative non privitive sic Rex subditis suis Jurisdictionem communicat in Causis Ecclesiasticis vigore Statuti in hujusmodi Casu editi cumulative non privitive By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained That whoever shall affirm that the Kings Majesty hath not the same Authority in Causes Ecclesiastical that the godly Kings had among the Jews and Christian Emperors in the Primitive Church or impeach in any part his Regal Supremacy in the said Cases restored to the Crown and by the Laws of this Realm therein established shall be Excommunicated ipso facto and not be restored but only by the Archbishop after his repentance and publick revocation of those his wicked Errors 7. The King being next under God Supream Governour of the Church of England may Qua talis redress as he shall see cause in all matters of Spiritual and Ecclesiastical Jurisdiction for the conservation of the Peace and Tranquillity of his Realms The Pope as appears by the Stat. of 25 H. 8. c. 21. claimed full power to dispense with all human Laws of all Realms in all Causes which he called Spiritual Now the King as Supream hath the same power in himself within his own Realms legally which the Pope claimed and exercised by Usurpation Eadem praesumitur mens Regis quae est Juris The Kings immediate personal ordinary inherent power which he executes or may execute Authoritate Regia suprema Ecclesiastica as King and Supream Governour of the Church of England is one of these Flowers qui faciunt Coronam Nor is the Kings immediate power restrained by such Statutes as authorize inferiour persons The Lord Chief Justice Hobart asserts That although the Stat. of 25 H. 8. 21. doth say That all Dispensations c. shall be granted in manner and
form following and not otherwise yet the King is not thereby restrained but his power remains full and perfect as before and he may still grant them as King for that all Acts of Grace and Justice flow from him By the Eighth Canon Concilii Calchuthensis held under Pope Adrian the First An. 787. the Pope had power to grant what Immunities and Priviledges he pleased in Church-matters and they were by the said Canon to be duly observed Whatever Authority the Pope pretended to in this Kingdom in such matters by way of Usurpation the same may the King as Supream Governour of the Church next under God in his own Dominions use and lawfully exercise by his Regal Authority ex justa plenitudine Potestatis suae Likewise Pope Agathon An. 680. in Concilio Romano-Britannico exercised his Papal Authority in the time of Lotharius King of Kent not only touching the Reformation of Errors and Heresies then in this Church but also as to the composure of differences and dissentions that then were among the Clergy of this Realm Such Presidents of the usurped power of the Papal See exercised in this Kingdom are now of no further use than to illustrate or exemplifie the Legal power inherent in the Kings of this Realm in such matters of Ecclesiastical Jurisdiction for the most High and Sacred Order of Kings being of Divine Right it follows that all persons of what estate soever and all Causes of what quality soever whether Ecclesiastical or Civil within his Majesties Realms and Dominions are subordinated to the Power and Authority of the King as Supream It is not only acknowledged but also constituted by way of an Ecclesiastical Canon That the power of Calling and Dissolving Councils both National and Provincial is the true Right of all Christian Kings within their own Realms and Territories 8. The Ecclesiastical Legislative power was ever in the Kings of this Realm within their own Dominions That in Ancient times they made their own Ecclesiastical Laws Canons and Constitutions appears by several Presidents and Records of very great Antiquity which were received and observed within their own Territories without any Ratification from any Forreign power One instance among many may be given of the Ecclesiastical Laws of Alured Mag. Regis Anglorum An. 887. This they did de jure by virtue of their own inherent Supremacy And therefore when Pope Nicholas the Second An. 1066. in the Bull wherein he ordained Westminster to be the place for the Consecration of Kings gave power to Edward the Confessor and his Successors to constitute such Laws in the Church as he should think fit he gave him therein no more than was his own before For the Kings of England might ordain or repeal what Canons they thought fit within their own Dominions in right of their Regal Supremacy the same being inherent in them Jure Divino non Papali For we find that in King AEtheldreds days An. 1009. in Concilio AEnhamensi Generali the Canons then made and afterwards caused by King Kanutus to be Transcribed were called the Kings Canons not the Bishops En hujus Concilii Canones quos in suas Leges passim transcripsit Rex Canutus Malmsburius AEtheldredo Regi non Episcopis tribuit And the Peers of this Realm per Synodum Landavensem were unexcommunicable nisi prius Consulto Rege aut ejus praecepto Which is a plain demonstration That the Kings of England Anciently had the Supremacy and superintendent Ecclesiastical power and Jurisdiction inherent in themselves exclusively to all other either home or Forreign powers whatever 9. It is by good Authority asserted That the King as Supream is himself instead of the whole Law yea that he is the Law it self and the only chief Interpreter thereof as in whose Breast resides the whole knowledge of the same And that his Majesty by communicating his Authority to his Judge to expound the Laws doth not thereby abdicate the same from himself but that he may assume it again unto him when and as oft as he pleases Dr. Ridl View p. 2. c. 1. Sect. 7. Consonant whereunto is that which Borellus hath Principum Placita Legis habent vigorem eatenus vim Legis obtinebunt quatenus fuerint cum honestate conjuncta Borel de Magist Edict l. 2. c. 4. Roland à Val. Cons 91. nu 54. vo 2. And Suarez tells us That Princeps est Lex viva reipsa praecipit ut Lex per scripturam Of which Opinion also is Alexander Imola and many others Suar. Alleg. 9. nu 13. The grant of Dispensations is a peculiar and very considerable part of Ecclesiastical Jurisdiction the which is eminently in the Crown and by the Stat. of 25 H. 8. the Archbishop of Canterbury may grant Dispensations Archiepiscopus possit dispensare contra Statutum Provinciale per se editum Et qui potest jus condere potest illud tollere Lindw de Cler. Conju c. 2. gl ult Extr. de Elect. c. Significasti c. Intonuit And in another place Episcopus in quibusdam Casibus Dispensare potest contra Canones Const Otho de Concu Cler. gl ver Meritis 10. The Laws and Statutes of this Realm have been tender of the Kings Supremacy ever since the Forreign power over the State Ecclesiastical was abolished In the Statute of 13 Car. 2. cap. 12. there is a Proviso That nothing in the said Act shall extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs And in the Stat. of 22 Car. 2. cap. 1. there is a Proviso That not any thing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical affairs but that his Majesty his Heirs and Successors may from time to time and at all times hereafter exercise and enjoy all Powers and Authority in Ecclesiastical affairs as fully and amply as any of his Predecessors have or might have done 11. As no Convocations for Ecclesiastical Constitutions or for correction or reformation of Abuses in the Church can be Conven'd without his Majesties Writ for that end and purpose so being Conven'd no Canons or Constitutions that shall then be agreed on can have any effect in Law or be in force to oblige any of his Majesties Subjects until his consent thereunto be first had and obtained and until they shall have the power of Ecclesiastical Laws by being ratified and confirmed by the Supream Authority Therefore the Archbishop of Canterbury may not hold a Council for his Province without the Kings leave for when such Council was held by Hubert Archbishop of Canterbury it was prohibited by Fitz-Peter Chief Justice for that he had not the Kings License therein but he would not obey And 13 E. 3. Rot. Parl. M. 1. there was a Writ for a Convocation of the Clergy of the Province of Canterbury and Pauls And another for the other of York vid. Stat. 25 H. 8. c. 19. where the Clergy of England acknowledge that
complaint thereof made to the Pope the Answer was That any man might be Cited to the Arches out of any Diocess in England Also That the Archbishop may hold his Consistory in any Diocess within his Jurisdiction and Province That the Archbishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Archdeacon and That the Archbishop of Canterbury prescribes to hold Plea of all persons in England But as to his power of having a Consistory in the Diocess of every Bishop this was in this Case denied but only where he was the Popes Legate whereof there were Three sorts 1. Legates à Latere and these were Cardinals which were sent à Latere from the Pope 2. A Legate born and these were the Archbishops of Canterbury York and Mentz c. 3. A Legate given and these have Authority by special Commission from the Pope Likewise in the Case of Jones against Boyer C. B it was also said by Dr. Martyn That the Archbishop hath Ordinary Jurisdiction in all the Diocesses of his Province and that this is the cause that he may Visit 13. The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England from whom the Irish Bishops received their Consecration for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings That Canterbury was the Metropolitan Church of England Scotland and Ireland and the Isles adjacent the Archbishop of Canterbury was therefore sometimes styled a Patriarch and Orbis Britannici Pontifex insomuch that Matters recorded in Ecclesiastical Affairs did run thus viz. Anno Pontificatus Nostri primo secundo c. He was also Legatus Natus that is he had a perpetual Legantine power annext to his Archbishoprick nigh a thousand years since And at General Councils he had the Precedency of all other Archbishops abroad and at home he had some special Marks of Royalty as to be the Patron of a Bishoprick as he was of Rochester to coyn Mony to make Knights and to have the Wardships of all those who held Lands of him Jure Hominii although they held in Capite other âands of the King as was formerly hinted He is said to be Inthroned when he is invested in the Archbishoprick And by the Stat. of 25 H 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome not repugnant to the Law of God or the Kings Prerogative As also to allow a Clerk to hold a Benefice in Commendam or in Trust to allow a Clerk rightly qualified to hold Two Benefices with Cure of Souls to allow a Beneficed Clerk for some certain causes to be non-Resident for some time and to Dispense in several other Cases prohibited by the Letters of the Canon Law Likewise the Archbishop of Canterbury Consecrates other Bishops confirms the Election of Bishops within his Province calls Provincial Synods according to the Kings Writ to him ever directed is chief Moderator in the Synods and Convocations he Viâits the whole Province appoints a Guardian of the Spiritualties during the vacancy of any Bishoprick within his Province whereby all the Episcopal Ecclesiastical Rights of that Diocess for that time belong to him all Ecclesiastical Jurisdictions as Visitations Institutions c. He may retain and qualifie Eight Chaplains which is more by Two than any Duke is allowed by Statute to do and hath power to hold divers Courts of Judicature for the decision of Controversies pertaining to Ecclesiastical Cognizance CHAP. III. Of Bishops and Ordinaries 1. Bishop Why so called Not above One to be in one Diocess 2. Why called Ordinary and what the Pallium Episcopale is 3. Bishopricks originally Donative Kings of England the Founders thereof 4. The manner of Election of Bishops their Confirmation and Consecration 5. Their Seals of Office in what cases they may use their own Seals 6. What follows upon Election to make them Bishops compleat the grant of their Temporalties 7. The Conge d'eslire and what follows thereupon 8. Bishopricks were Donative till the time of King John 9. What the Interest and Authority is in his several capacities 10. Episcopal Authority derived from the Crown 11. The Vse and Office of Suffragan Bishops 12. Whether a Bishop may give Institution out of his own proper Diocess and under other Seal than his own Seal of Office 13. Several things incident to a Bishop qua talis 14. Ordinary what properly he is and why so called 15. In what cases the Ordinaries Jurisdiction is not meerly Local 16. The Ordinaries power de jure Patronatûs 17. Whether the Ordinary may cite a man out of his own Diocess Also his Right ad Synodalia 18. The Ordinaries power of Visitation 19. The Dignity and true Precedency of the Bishops in England 20. Temporal Jurisdiction anciently exercised by Bishops in this Realm the Statute of 17 Car. 1. against it Repealed and they Restored to it by the Stat. of 13 Car. 2. as formerly 21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops the Endeavours thereby to take away Episcopal Jurisdiction the Nomination of all Bishops was Anciently Sole in the King 22. The Bishops of London are Deans of the Episcopal Colledge 23. A Case at Common Law touching a Lease made by one Bishop during the life of another of the same Diocess in Ireland 1. BISHOP Episcopus from ãâã ãâã ãâã ãâã ãâã supra and ãâã ãâã ãâã ãâã ãâã intendere an Overseer or Superintendent so called from that watchfulness care charge and faithfulness which by his Place and Dignity he hath and oweth to the Church A word which all Antiquity hath appropriated to signifie the Chief in Superintendency over the whole Church within his Diocess wherein are divers inferiour Pastors This Oversight or Care the Hebrews call Pekudah Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same Diocess whence it is that Cornelius Bishop of Rome as Eusebius relates upbraided Novatius for his ignorance in that point when he could not but know there were no less than 46 Presbyters in that Church Oecumenius and St. Chrysostome affirming also as many at Philippi For in this restrained sense as the word Bishop is now taken it cannot be imagined that there should be more than one in one City or Diocess at the same time consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City This Novatius aforesaid was a Priest of Rome 254 years after Christ he abhorred Second Marriages and was condemned as an Heretick in a Synod at Rome the same year Every Bishop many Centuries after Christ was universal Incumbent of his Diocess received all the Profits which were but Offerings of Devotion out of which he paid the Salaries of such as Officiated under himâ
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
a kind of Collect for the Saint to whose Name the Church is Dedicated and some other Services as the Chaunter shall appoint So that although the Patron might chuse the Ground yet the Prelate was to come and Consecrate it the Patron might bring the Stones but the Bishop laid the Foundation the Workmen might with the Materials make a House but the Bishop by Consecration made it a Church It was but the dead body of a Temple till it received the being of a Church by the influence of the Diocesan Thence it was that the priviledge of a new Church followed not the Building but the Consecration thereof as was well observed by that Devout and Learned King Alured in the fifth Canon of his Ecclesiastical Laws where he saith That if a man pursued by his Enemy flie to the Temple no man shall thence take him away for the space of seven days which Law was yet made under a Caution That this freedom shall not be granted to any Church but such as shall be Consecrated by the Bishop 5. Consecration relating to the person office and dignity of a Bishop as in the former part of this Chapter was by the Imperial Law so necessary to the making him a Bishop compleat as that without it his Election and Confirmation would not have entituled him to any Church that should be new erected within his Diocess whereunto he being Consecrated had a right and Title as is evident not only by the Emperours Novel but also more peculiarly acknowledged by the ãâã ãâã ãâã ãâã ãâã or the setting up of the Cross behind the Altar when he made the Consecration Thus the Eucholgue for the Greek Church The like also is observed in the Latin where the Ceremonies are more tedious and elaborate By the setting up of the said ãâã ãâã ãâã ãâã ãâã the Right of the new Church was conveyed to the Patriarch or Bishop as by an especial Title and that not only by the Euchologue in the Greek but also by the Emperour 's Novel in the Latin Church Concerning which Right and the Conveyance thereof by the ãâã ãâã ãâã ãâã ãâã Observable to this purpose is that Synodical Sentence given by Germanus Patriarch of Constantinople against John Archbishop of Lepanto touching certain Episcopal Monasteries whereon he had illegally fixed his Cross under pretence of a Right to the same 6. This Consecration specially as it refers to Bishops is Character indelebilis insomuch that although it should so happen that for some just cause he should be deposed or removed from the See or suspended ab Officio Beneficio both from his Spiritual Jurisdiction as to the exercise and execution thereof as also from the Temporalties and profits of the Bishoprick yet he still retains the Title of a Bishop for that it is supposed the Order it self cannot absolutely be taken from him King H. 1. banished Thurstan Archbishop of York for five years for receiving Consecration from the Pope Speed 440. b. 458. b. 7. It appears by good Chronology that the first that ever Consecrated Churches was Euginus who was a Greek and Priest of Rome and was the first that ever styled himself Pope An. 154. who wrote de Trinitate Vnitate Dei. He was the first that Decreed that Churches should be Consecrated with the consent of the Metropolitan or Bishop and that there should be one God-father and one Godmother at Baptism 8. In a Case of Translation the Bishop need not to be Consecrated de Novo as in case of Creation Anciently and according to the Canon Law and where the Pope's Spiritual power and authority was in force Bishops were not so much by Election as by Postulation and then the saying was Electus Postulando Postulatus obligando and in that case the Elected was a Bishop presently without either Confirmation or Consecration only by the Assent of the Superiour Before Consecration the Bishop hath not actual possession although he hath a Freehold in Law after Consecration But in case of Translation there is not any new Election nor may the Dean and Chapter pray a Congé d'Estire but they signifie to the King how their Bishoprick is void ideo humilime Postulamus Humbricensem Episcopum fore Episcopum nostrum and that is called Postulation and then if the King grant it he is the Bishop Trin. 21 Jac. B. R. Sir Jo. Vaughan's Case vers Ascough Roll. Rep. Postulatio est alicujus personae ad dignitatem vel Societatem Fraternam Canonica facta vocatio vel est personae quae eligi non potest ad eligendum petitio Cap. innotuit § habito de Elect. The Bishop of St. P. was chosen Bishop of Trevers and had the assent of the Pope and when he came there he found another in possession whereupon he would have returned to his former Bishoprick but could not because it was void before by the consent of the Superiour And in the Case of Evans and Ascough it was said That a Bishop hath been Summoned to Parliament before by Confirmation but as Jones there said That was after his Possessions or Temporalties were restored to him And Caltheep there said That in the Case of Translation of a Bishop there are five things to be performed 1. The Chapters Intimation of the death of their Bishop praying Congé d'Estire 2. Congé al eux d'Estire 3. A Certificate of the Election 4. The Assent of the Bishop and the King 5. The Writ to the Archbishop to Confirm and Install him because in such case of Translation he shall not be Consecrated de Novo as aforesaid But Consecration is necessary to the making of him a Bishop who was none before and is the fourth Act in order to a Bishop according to the enumeration of these steps and degrees thereunto which in the said case of Evans and Ascough is mentioned by Whitlock where he faith That in the making of a Bishop when a Bishoprick is void the course is 1. To obtain a Congé d'Estire 2. The Kings Letters Missive whom they shall abuse 3. Vpon the Election three Instruments thereof one whereof to the party Elected another to the Archbishop a third to the King certifying him of the Election and then there is an act of Assent to the Election which cannot be without his Assent 4. The Kings Writ to the Archbishop to Consecrate and Install the person Elected 5. Then the Archbishop issues forth a general Citation and therein doth prefix a certain day for the Confirmation which is done accordingly and then be is Consecrated Then the new Bishop swears Fealty to the King which being done the King orders him his Temporalties so that there are three principal Acts required to the making of a Bishop The Election is as the Sollicitation the Confirmation is the Contract the Consecration is the Consummation of the Marriage Answerable whereunto said Doderidge in the Case aforesaid are the Acts of making a Parson As 1. Presentation whereto
answers the Election of a Bishop 2. Admission to which Confirmation answers 3. Institution which is as the Consecration and Induction as the Restitution of the Temporalties The Spiritual Marriage between the Church and the Bishop initurper Electionem Contrabitur per Confirmationem Consummatur per Consecrationem and the Restitution of the Temporalties is as the bringing home of the Wise CHAP. VII Of Deans and Chapters 1. What a Dean is why so called what Dean and Chapter signifies and what Deans Rural arc 2. The Division of Deans according to the Civil and Canon Laws a Question in Law touching the Deanary of St. Martins 3. Two ways of Creating Deans and in what other senses the word or style of Dean is applicable 4. Four sorts of Deans according to the Law of the Land 5. The Patronage of Deanaries is in the Crown 6. The Dean and Chapter of a Cathedral is a Corporation Spiritual 7. A Deanary consists of two parts The difference between a Dean Prebend and Parson and that Deanaries and Archdeacomies are Ecclesiastical Dignities 8. Chapter what the several Acceptations of that word 9. The difference between Capitulum and Conventus in the Canon Law 10. The description of a Chapter as to their Constitution and Government 11. Whether one Bishop may have two Chapters 12. Whether the Lease of a Parsonage in one Diocess annexed to a Prebend in another made by that Prebend be good without the Confirmation of that Bishop in whose Diocess the Parsonage is 1. DEAN ãâã ãâã ãâã ãâã ãâã decem is an Ecclesiastical Magistrate so called because anciently he presided or had power over Ten Canons or Prebends at the least Sed dicuntur Decani Rurales eo quod Decem Clericis five Parochiis praesint Secund. Papiam Lindw de Constit verb. Decan Rurales gloss Dean Rural because he usually had charge over Ten Country Parishes Anciently also called Archipresbyter because other Presbyters were under his charge Here in England he is commonly called a Dean who is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church the rest of that Ecclesiastical Society or Corporation being called Capitulum the Chapter Dean and Chapter is a Body Corporate Spiritual consisting of many able persons in Law viz. the Dean who is Chief and his Prebends and they together make the Corporation And as this Corporation may joyntly purchase Lands and Tenements to the use of their Church and Successors so likewise every of them severally may purchase to the use of himself and his Heirs After the death of a Prebend the Dean and Chapter shall have the Profits And after the death of a Dean of a Free Chappel belonging to the King the King shall have the Profits of the Deanary for it is at the pleasure whether he will Collate a new Dean to it It is likewise held that a Deanary is a Spiritual Promotion and not a Temporal by all the Judges And if the Nomination and Patronage of a Deanary be at the appointment of the King his Heirs and Successors and he appoint a Dean yet it is a Spiritual Promotion The King makes the Corporations of Dean and Chapter The Chapter of the Bishop consists of a Dean as the Chief and of the Prebendaries or the like which are commonly called the Chapter As to the Bishop and Chapter which are but one Body their possessions are divided so as the Bishop hath a part for himself and the Chapter the residue And their Possessions also for the most part are divided the Dean having one part alone in right of his Deanary and each particular Prebendary a certain part in right of their Prebends the residue the Dean and Chapter have alike and each of them is to this purpose incorporate by himself In the Cathedral Churches of St. David and of Landaff there never hath been any Dean but the Bishop in either is Head of the Chapter and in the Bishops absence in the Chapter at St. Davids and at Landaff the Archdeacon There are also some Deans in England without any Jurisdiction only for Honour so styled as the Dean of the Chappel Royal and Dean of the Chappel of St. George at Windsor And some Deans there are without any Chapter yet enjoying certain Jurisdictions as the Dean of Croydon the Dean of Battel the Dean of Bockin c. In the Case of the Dean and Chapter of Norwich it is said That in Christian Policy it was thought necessary for that the Church could not be without Sects and Heresies that every Bishop should be assisted with a Council viz. a Dean and Chapter 1 To Consult with them in deciding of difficult Controversies of Religion to which purpose every Bishop habet Cathedram 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 afterwards 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 Council remains This word Dean is diversly used by Lindwood who speaking of Dean-Rurals describes them to be certain persons that have certain Jurisdiction Ecclesiastical over other Ministers and Parishes near adjoyning assigned unto them by the Bishop and Archdeacon being placed and displaced by them Such are the Dean of Croydon in Surrey the Dean of Battel in Kent the Dean of Burian in Cornwal c. These Deans Rural are Decani Temporales Constituted to some Ministerial Function under the Bishop or Archbishop They are certain Ecclesiastical persons having certain Offices commonly belonging to the Bishop and Archdeacon and therefore to either of them belongs the receiving or removing of them and their Office is temporal not perpetual as is the Office of the Deans of Cathedral and Collegiate Churches and other Churches quibus perpetuo intitulantur 2. The Civil and Canon Laws do chiefly take notice but of three sorts of Deans the one he who is impower'd and set over Ten Souldiers Another he who is called Dean Rural as aforesaid The third is a Dean of a Cathedral or Collegiate Church as abovesaid There is also the Deanary of St. Martin le Grand Lond. concerning which Lindwood puts the question Whether it be such an Ecclesiastical Benefice as in effect may incur such penalties as may possibly happen to other persons Beneficed And after deep enquiries into the Laws Presidents and Antiquities Forreign and Domestick with very delectable variety of great Learning hinc inde argumentatively and pro con impartially at last doth conclude it in the Affirmative Lindwood Constit tit de Cohab. Cleric Mul. c. ut Clericalis
verb. Beneficiati 3. As there are two Foundations of Cathedral Churches in England the Old and the New the New being those which King Hen. 8. upon the suppression of Abbies transformed from Abbot or Prior and Convent to Dean and Chapter So there are two ways or means of Creating these Deans for those of the old Foundation were raised to their Dignity much like Bishops the King first issuing and granting his Congé d'Eslire to the Chapter the Chapter thereupon making their Election the King then yielding his Royal Assent and the Bishop Confirming him and giving his Mandate to install him But those of the New Foundation are by a much shorter course install'd by vertue of the Kings Letters Patents without either Election or Confirmation Deans of the Old Foundation before the suppression of Monasteries arrive to their Dignities much like Bishops But Deans of the New Foundations upon suppression of Abbies or Priories transformed by H. 8. into Dean and Chapter are by a shorter course Installed by vertue of the Kings Lett. Pat. Without Election or Confirmation it was said by Hobart in Briggs Case That a Dean and Chapter are a Body Spiritual and annexed to the Bishop throughout all England Briggs C. in Winch. Rep. The same word is also applied to divers that are the Chief of certain peculiar Churches or Chappels as the Dean of his Majesties Chappel the Dean of the Arches the Dean of St. George's Chappel in Windsor c. Nec Collogia alicui praefecti nec Jurisdictione ulla donati Nomine tamen velut honocis gratia Insignes says the Learned Spelman 4. Each Archbishop and every Bishop hath a Dean and Chapter and whereas it was formerly said That the Civil and Canon Laws do chiefly take notice but of three sorts of Deans it is manifest that there are four sorts of Deans or Deanaries whereof the Laws of this Kingdom do take knowledge The first is a Dean who hath a Chapter consisting of Canons and Prebendaries as aforesaid subordinate to the Bishop as a Council assistant to him in matters Spiritual relating to Religion and in matters Temporal relating to the Temporalties of his Bishoprick The second is a Dean who hath no Chapter Presentative having Cure of Souls he hath a Peculiar and a Court with Ecclesiastical Jurisdiction therein he is not subject to the Visitation of the Ordinary Such is thè Dean of Battel in Sussex a Deanary Founded by William the Canquerour in memory of his Conquest who though he be Presentable to the Bishop by the Patron and admitted to the Deanary by Institution and Induction by the Bishop of Chichester yet is exempt from his Visitation The third is whose Deanary is not Presentitive but Donative nor hath he Cure of Souls but is only by Covenant or Condition he hath a Court and a Peculiar holding Plea of matters Ecclesiastical arising within his Peculiar over divers Parishes Such a Dean constituted by Commission of the Metropolitan is the Dean of the Arches the Dean of Bocking in Essex and divers others The fourth is the Rural Dean aforesaid having no absolute Judicial power in himself but is only by the direction of the Bishop or Archdeacon to order and prepare Ecclesiastical affairs within his Deanary and Precinct the power of these Rural Deans is at this day nigh extinguished by the Office of the Archdeacon and the Bishops Chancellor yet in some parts of this Realm it is still in force 5. Of these Four sorts of Deans the first as was said hath a Chapter being an Ecclesiastical Governour Secular over the Canons and Prebendaries in the Cathedral Church as the Dean of Canterbury St. Pauls c. The Patronge of all which Deanaries is in the Crown and doth not belong to any Subject Also the new Deanaries as was formerly hinted which were translated from Priories and Covents or were after the dissolution of Abbies and Monasteries Founded by King H. 8. or other Kings of this Realm are now Donative and the Deans thereof are by the Kings Letters Patents Installed but the Ancient Deans of Chapters are as Bishops by a Congé d'Eslire and are after Confirmed by the Bishop 6. The Dean end Chapter of Canterbury are during a Vacancy of that Archbishoprick Guardians of the Spiritualties to whom the Stat. of 25 H. 8. of Dispensations giveth power of Dispensation when that See is vacant The Dean and Chapter of any Cathedral make a Corporation Spiritual and at the Common Law challenges are allowed where the Issue concerns a Corporation and they to make the Pannel or where any of their Body are to go on the Jury or any of kin unto them though the Body Corporate be not directly a party to the Suit A Dean and Chapter bringing an Assize a Juror was challenged because he was Brother to one of the Prcbendaries and the challenge for that reason allowed If a Dean take an Obligation to him and his Successors it goes to his Executors which holds true also as to a Bishop Parson Vicar c. 7. A Deanary consists of Two parts viz. Officium Beneficium The Officium hath two parts the one is Dignity and Jurisdiction the other is Administration But some Promotions are meer Administrations as Prebends and Parsons which are not Dignisies because they have not Jurisdiction 11 H. 4. But an Archdeacon hath a Dignity because he hath a Jurisdiction So hath a Dean to whom Anciently according to Lindwood the Canons made their Confessions Et quod Canonici quead euram animarum subsunt Decano Lindw de Poenit. c. 1. gloss in verb. vel Decano in ver Decanum Capitulum Who ought to visit his Chapter 5. E. 3. 7. and if a Probend be made a Dean the Prebendary is void by Cossion 5 E. 2. F. Brieff 800. Also a Dean may make a Substitute as to the matters of his Jurisdiction as for Corrections or Visitations but not as for the other part viz. the Administration for which reason he cannot make a Deputy to Confirm Leases and the like So that in a Deanary Cathedral there seems to be 1 Dignity and Jurisdiction 2. Office and Administration 3. the Behefit or Profits thereof which seems very clear for that a Parson a Prebend or the like hath not Dignity but only the Office or Administration with the Profits but a Dean who hath Administration as others hath also Jurisdiction and Dignity The Law is also the same as to an Archdeacon 11 H. 4. 40. 7 H. 6. 27. 27 H. 6. 5. And a Writ brought against a Dean is good and sufficient without his proper Name because it is of it self a Name of Dignity and that a Deanary is a Dignity appears by 5 E. 3. 9. Breve 800. as aforesaid and it is an Office also for that in Ancient times a Dean took the Confessions of his Prebends as was likewise hinted before Also a Dean may by his Dignity make a Deputy to correct c.
but not as to his Judicial Office as to Confirm Leases and the like By the Canon Law he that is the Archipresbyter is also called Dean scil Presbyterorum vel Ecclesiae Cap. ad haec De Offic. Archidiac Cano. innovamus 60. Distinct And because the Dean of a Church understand it of the Roman Church in locum Archipresbyteri subrogatus est Rotae Decis 451. in novis rursum in Decis 443. The Archipresbyter was so called because he was in some certain matters and causes set or appointed over the Priests or Presbyters and such as were of the Sacerdotal Office specially in the absence of the Bishop Cap. 1. 2. De Offic Archipresb The Dean is such a Dignity that the Canon Law styles him honorabiliorem partem Capituli Cap. post Electionem c. 7. de Concess Praebend c. cum inter ca. 18. ibi Panor gloss de Elect. And in a large sense a Dean may be said to be the chief of any that are of the same state and order Gloss in rubr de Decanis lib. 12. C. ibi Alceat and so the Canons of the Church of Constantinople tanquam Digniores were by Honorius and Theodosius called Decani L. non plures 4. de Sacros Eccles lib. 1. C. tit 5. and the more honourable inter Rotae Auditores is the Dean of the Pope's Chappel propter Ministerium quod vocatur Mithrae Lud. Gomes in proaem ad Reg. Cancell de Prothonotariis The truth is the Canon Law in express terms says that Deconatus or a Deanary est Nomen speciale Dignitatis Cap. cum illis vero § illis de Praebend in 6. that is when it refers to praeeminency in any Church Cathedral or Collegiate Gemin Cons 131. nu 5. ver expressit de Deconatu For as to Deans Rural it is otherwise Cap. licet Canon de Elect. in 6. the Dignity qua talis belonging properly to the other viz. Decano Capituli who is Caput principale ipsius yet under the notion or appellation of a Chapter the Dean thereof is not comprehended unless he be specially mentioned or nominated Rebuff in Tract nominat q. 8. nu 33. Barbos in 3 Decret c. post Electionem de Concess Praebend nu 3. 8. Chapter Capitulum so termed by the Canonists not properly but metaphoricaily quasi a Little head or a kind of Head not only to rule and govern the Diocess in the Vacation of the Bishoprick but also when the See is full to assist the Bishop as a Council by way of Advice in matters pertaining to the Diocess Vid. Panor in cap. Capitulum extra de Rescript The Chapter consisting of a Dean Canons and Prebends is Clericorum Congregatio sub uno Decano in Ecclesia Cathedrali or it signifies Congregationem Clericorum in Ecclesia Cathedrali Conventuali Regulari vel Collegiata Of these Chapters some are Ancient some New the New are those which were founded or translated by King Henry the Eighth in the places of Abbots and Covents or Priors and Covents Or those which are annexed unto new Bishopricks founded by H. 8. as were Bristol Chester and Oxford This word Capitulum or Chapter hath in addition to the Premisses other significations in Lindwoods Provincials where he speaks de Capitulis Ruralibus of Chapters Rural Lindw tit de Constit cap. quia incontinentiae gloss verb. Capitulis Ruralibus and there acquaints us with no less than six significations of this word Sometimes says he it is taken for the place in quo fiunt Communes tractatus Collegiatorum Sometimes it is taken for the place In quo fiunt Disciplinae delinquentium Cap. Reprehensibilis in fi Extr. de Appell Sometimes it is taken pro Decretali vel abia certa distinctione Sacrae Scripturae Cap. cum supr Extr. de Sepult Sometimes it is taken pro Capitulis Ruralibus as aforesaid that is when in Lecis minus insignibus viz. in Rure Constitutis known by the name of Conventus in Otho's Constitutions Cap. Sacramenta ad finem ver Conventib Sometimes it is taken for a Collection of persons adinvicem de his quae eis incumbunt in Locis ad hoc assignatis tractantium and being taken in this sense it may be understood sometimes for persons Congregated in a Metropolitan or Cathedral Church and sometimes for persons congregated in a Church Conventual Regular or Collegiate and each of these last may in a large sense be said to be a Collegiate Church according to the description thereof viz. That Ecclesia Collegiata est Collectio hominum simul viventium but to speak properly that is Capitulum which is respectis Ecclesiae Cathedralis That Conventus which is respectu Ecclesiae Regularis and that Collegium which is respectu Ecclesiae Inferioris ubi est Collectio viventium in Communi And sometimes Capitulum is taken for a Collection of many persons not living in Common sed ob tracatus Communes inter se habendos ad aliquem locum Constuentium according to which a convening together of many Rectors Vicars and other Ecclesiastical persons ob tractatus communes inter se habendos etiam dicitur Capitulum Panormitan understands it pro Collectione seu pro Collegio ipsorum Canonicorum but withal says it hath divers significations all which he comprizes in this one Verse Distinguit minuit Locat Collectio fertur Distinguit when one Subject is distinguished from another in any Tract or Treatise Minuit when it stands diminutively Capitulum quasi parvum Caput as aforesaid understand it secundum modum Locat when it is taken for the Place it self where the Canons are met or conven'd Collectio and so it is taken pro ipso Collegio as aforesaid Panorm de Rescript Extr. c. Capitum Whereof there are three inseparable signs as one Common Seal one Common Stock or Treasure and one Common Head or Rector 9. By the Canon Law the words Capitulum Conventus Coetus and Concilium are as it were Synonymous but the terms Capitulum and Conventus are frequently used Promiscuously But to speak properly according to that Law Conventus is said to be Congregatio Ecclesiae Regularis and Capitulum or a Chapter is said to be Congregatio Ecclesiae Secularis The word Chapter taken as here in a proper Canon-sense is a name Collective having a Plural signification yet in reference to different things may be accommodated as well to the Singular as the Plural 10. A Chapter Ecclesiae Cathedralis consists of persons Ecclesiastical Canons and Prebendaries whereof the Dean is chief all subordinate to the Bishop to whom they are as Assistants in matters relating to the Church for the better ordering and disposing the things thereof and for Confirmation of such Leases of the Temporalties and Offices relating to the Bishoprick as the Bishop from time to time shall happen to make It seems that at the Common Law by the Gift or Grant of Lands to a Dean and Chapter being a Corporation Aggregate the Inheritance or
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
Otherwise it is where the Archdearonry is only by Contract or Covenant made between the Bishop and the Archdeacon for in that case if the Bishop so intermeddle within the Jurisdiction of such Archdeacon or hold Plea within the same he can have but an Action of Covenant against the Bishop and no Prohibition lies in that case The Cognizance which the Archdeacon hath is of matters meerly Ecclesiastical to which end he or his Commissary may hold his Court where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry and from him the Appeal is to the Diocesan 3. An Archdeaconryship being only matter of Function and as supposed not properly Local nor any Indenture made of it it hath been some question heretofore whether a Quare Impedit doth lie of it or not But it was held in the Affirmative for that an Archdeacon hath Locum in choro The power of an Archdeacon was derived from the Bishop and to him he is subordinate To which purpose the opinion of the Court in Hutton's Case upon a Quare Impedit was That if a Suit be before an Archdeacon whereof by the Statute of 23 H. 8. the Ordinary may license the Suit to a higher Court that the Archdeacon cannot in such case balk 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 in that Case that so it had been ruled heretofore 4. 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 He hath power to keep a Court which is called the Court of the Archdeacon or his Commissary And this Court is to be holden where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry And from him the Appeal is to the Diocesan 5. Although by the Canon Law if one having a Benefice with Cure of Souls accepts an Archdeaconry the Archdeaconry is void yet it is conceived that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reason of a Proviso there 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 and to this Opinion did Wray and the other Justices incline in Vnderhill's Case And indeed an Archdeaconry by the express Letter of that Statute is exempt from being comprehended under the name of a Benefice with Cure for the words are That no Deanary Archdeaconry Chancellorship Treasurership Chantership or Prebend in any Cathedral or Collegiate Church nor Parsonage that hath a Vicar endowed nor any Benefice perpetually Appropriate shall be taken or comprehended under the name of a Benefice having Cure of Souls 6. By the Ecclesiastical Constitutions and Canons of the Church of England no Archdeacon nor indeed any other Ecclesiastical Judge may suffer any general Process of Quorum Nomina to issue out of his Court Except the Names of those to be cited be first expresly entered by the Register or his Deputy under such Process and both Process and Names first subscribed by such Archdeacon or other Ecclesiastical Judge or his Deputy with his Seal thereto affixed And in places where both the Bishop and Archdeacon do by Prescription or Composition visit at several times in one and the same year the Archdeacon or his Official shall within one month next after the Visitation ended that year and the Presentments received certifie under his hand and Seal to the Bishop or his Chancellor the Names and Crimes of all such as are presented in his said Visitation to the end the Chancellor may not Convent the same person for the same Crime for which he is presented to the Archdeacon which course the Chancellor is in like manner to observe in reference to the Archdeacon after the Bishops Visitation ended The which was Ordained to prevent the Prosecution of the same party for the same fault in divers Ecclesiastical Courts And in cases of remitting Causes from the Inferiour Judge the Archdeacon cannot remit the Cause to the Archbishop but he must remit it to his Bishop and he to the Archbishop Trin. 11 Jac. 7. The Archdeacon within the Jurisdiction of his Archdeaconry may by vertue of his Office have his Visitation if he so please or need shall require once every year but of necessity he is to have his Triennial Visitation Lindw de Offic. Archid. c. 1. verb. Visitatione gloss But whether of Common right and by the Jus Commune the Archdeacon may Visit within the Jurisdiction of his Archdeaconry is some question yet resolved by distinguishing whether the Visitation be made per modum Serutationis simplicis by the Archdeacon as the Bishops Vicar and so he may Visit of Common Right but if in such Enquiries he take upon him nomine suo proprio to correct Faults other than such small ones as wherein Custome may warrant him in such case it is held that he hath not power of Visitation de jure communi Lindw ibid. And in all such things as belong to his Visitation he hath Jurisdiction and by Custome over Lay-persons as well as over the Clergy It seems therefore he may do all such things as without the doing and dispatch whereof his Jurisdiction could not clearly appear L. cui Jurisdictio ff de Jurisd om Jud. and therefore wherever he may take cognizance of a matter there he may also give sentence and condemn Extr. de Caus Poss propr c. cum Super. de Offic. Deleg c. ex Literis which is supposed to hold true by Custome and inasmuch as the cognizance and reformation of such matters do belong to the Ecclesiastical Court whence it is that an Archdeacon may impose a penalty on Lay-men for the not repairing their Parish-Church within his Jurisdiction Extr. eod c. ult Extr. de Offic. Ord. c. 1. Lindw ubi supr verb. Imperitiam For it is expresly enjoyned and ordained That Archdeacons and their Officials shall at their Visitation of Churches take the condition of the Fabrick thereof into special consideration specially of the Chancel and in case there be need of Reparations shall set or fix a time within which such Reparations shall be finished which time is likewise to be set under a certain penalty Lindw de Offic. Archidiac c. Archidiaconi 8. By the Canon Law a man cannot be an Archdeacon under the age of 25 years Can. Nullus in propositum 60 Dist And by the Council of Trent he ought to
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
may not of the same Church exact one Procuration from the Rector another from the Vicar if he hath the Procuration in Victualibus of the Rector he ought to receive nothing of the Vicar nec è contra for one Procuration of one Church for one day is held sufficient dict c. Foelicis de Censib Nor do the Canons allow above one Procuration in case there be more Churches than one Visited in one and the same day the Reason whereof in Law because the Visitation is the Principal the Procuration is but the Accessory and the Visitation only of one day ought not to have the Procurations of more nor ought the Accessory to exceed the Principal Lindw ibid. de Censib c. quamvis gl ib. ver Canones Nor ought there to be paid above one Procuration for the mother-Mother-Church and the Chappel thereto belonging when they are Visited Can. ibid. ver una Ecclesia Yet there are Canonists of very good Authority as Andraeas and others who holding the contrary do positively assert That every Chappel dependent if Peopled and of ability shall pay its own proper Procuration at times of the Ordinary Visitation for that the Bishop is to have a respect to every individual Member of his Diocess It is therefore distinguished and confessed that this is true when the Chappel dependent hath a Curate proper of its one and distinct from or other than the Curate of the Mother-Church But otherwise when the Rector of the Superiour Church is Curate of both only doth exercise the Cure in the said Chappel by a Vicar not Perpetual but Temporal and removeable ad Libitum Gl. in d. ver una Ecclesia Lindwood on this occasion puts the Question Whether in case the Church be of one Diocess and the Chappel thereto annexed or united or dependent thereon of another whether in that case there shall at the Visitation be but one Procuration paid for both He resolves it thus viz. That if the Ordinary of the place where the said Chappel stands hath formerly had there his Visitation and Procuration ratione Visitationis ejusdem then and in that case the power of Visiting the same nor by consequence the Procuration due ratione Visitationis is not taken away from that Ordinary by such union or dependency Gloss ibid. in ver Ecclesia 7. By the aforesaid Council of Lateran all Visitors were limited to a certain number of Visitation-Attendants according to their several qualities as Archbishops to the number of forty or fifty men with their Horses the Bishop to twenty or thirty Cardinals to twenty five though they could not digest such an undervaluation Archdeacons to five or seven Deans that is Archipresbyteri Rurales as the Gloss expounds it to Two only Gl. in ver Decani Extr. eod c. cum Apostolus Extr. Com. de Censib c. vas Electionis And the truth is the Archdeacon according to the Canon may not have in his Ordinary Visitation above the number of seven persons if he exceed that number there is not any Procuration due for the Supernumeraries Lind. de Cens Procurat c. 1. ver excedant glo ibid. gl in ver Visitationis gl ib. in ver Debitam 8. The word Synodale seems to have Three significations as 1 it seems to signifie Conventus or a Meeting in the same sense with Synodus as being taken for the Meeting or Synod it self and so used by Gregory 3. in his Epistle to the Bishops of the Provinces of Baiory and Almany Catholica Sanctorum Patrum Authoritas jubet ut bis in anno pro salute populi Christiani seu exhortatione adoptionis filiorum SYNODALIA debent celebrari c. This Epistle you have cited by Cardinal Baronius in the Eighth Tome of his Annals about the year 738. 2 It seems to signifie the Acts done at a Synod as well as the Synod it self and in this sense you have it in the Tripartite History where mention is made of a Synod of Bishops assembled at Antioch out of divers Provinces who sent the Emperour Jovinian a Copy of the Nicene Creed Hunc Libellum meaning the said Creed in collectione Synodalium Sabini conscriptum invenimus In which place Synodalia seems to import the Acts of that Synod collected by that Sabinus 3 It signifies a Cense or Tribute in money paid to the Bishop or to some other for his use by the Inferiour Clergy The forementioned Author of the Historical Discourse of Procurations c. acquaints us That in the second part of the Appendix to the third General Council of Lateran there is an Epistle of Pope Alex. 3. to certain Archdeacons and Deans reproving them for extorting of moneys from the Clergy sub diversis nominibus in a fraudulent kind of way Et hujusmodi exactionem saith that Epistle ut eam Liberius videamini exigere quandoque Consuetudinem Episcopalem quandoque SYNODALIA quandoque Denarios Paschales appellantes And in this sense is the word Synodale here used and taken which the Archdeacon claims not so much Jure Communi Ecclesiastico as by Composition with or Prescription from the Bishop 9. This Synodal or Synodical duty was anciently known by two other Names which now are grown obsolete the one Cathedraticum probably from the original Cause thereof being ob honorem Cathedrae Episcopalis the other Synodaticum from the time of payment both used promiscuously The former of these viz. the Cathedraticum was a Cense of two shillings paid by the Inferiour Clergy to the Bishop as appears by the Acts of certain Councils of Bracar and Toledo as also by the Constitutions and Rescripts of Popes Ilud te volumus modis omnibus custodire ne qui Episcoporum Siciliae de Parochiis ad se pertinentibus nomine CATHEDRATICI amplius quam Duos Solidos praesumant accipere 10. q. 3. c. illud c. placuit ibi c. So Honorius 3. expresseth Two shillings nomine Cathedratici Extr. de Offic. Jud. Ordin c. conquerent gl ibid. in ver Duos solidos which is a Pension paid to the Bishop à qualibet Ecclesia secundum Loci consuetudinem as Panormitan upon that Text Abb. c. conquerent de Offic. Jud. Ord. The reason of this payment was according to Hostiensis in argumentum subjectionis ob honorem Cathedrae Hostiens in Sum. de Censib ex quibus ver Cathedraticum autem And the Council of Bracar Placuit ut nullus Episcoporum per suas Dioeceses ambulans praeter honorem Cathedrae suae id est Duos Solidos aliud aliquid per Ecclesias tollat cited in the Decree 10. q. 3. c. placuit Note that the Cistersians by virtue of their Order were priviledged from being present at the Synodical Meetings assembled by the Bishop within his Diocess and from the payments of those Synodals Gloss in ver Episcopus c. Episcopus non debet Dist 18. Extr. de Majoris Obed. c. 9. Quod supr gl ib. in ver Diocoesana This Cathedratick-payment began when
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
tempore Pentecost oblata dicto nuper Prioratui beatae Mariae Wigorn. modo dissolut dudum spectan pertinen c. Ex Archivis Decani Capit. Wigorn. But in Glocester it seems it is otherwise for there the Bishop and the Archdeacon only receive them nor can the Dean and Prebendaries that now are of the Cathedral make any just claim to them For before the Suppression these Pentecostals were inter alia valued to the Archdeacon in the Kings Books as part of the Revenue of the Archdeaconry And as for Procurations aforesaid although they are as Dr. Cosen says ratione Visitationis plerumque praestandae yet not solummodo so and thence it is held that they are in some places payable to the Archdeacon jure Consuetudinario even in the Bishops Triennial year sine Visitatione on the Archdeacons part 11. To this purpose Remarkable is that Case of Proxies which Sir John Davis the Kings Attorney General in Ireland reports to have been there Resolved and Adjudged The Case was this The Bishop of Meth before the dissolution of Monasteries had a Proxy of fifteen shillings four pence payable yearly out of the Commandry of Kells in the County of Meth parcel of the Possessions of the Hospital of St. John of Jerusalem in Ireland and one other Proxy of twenty shillings payable yearly out of the Impropriate Rectory of Trevet in the same County parcel of the possessions of the Abbey of Thomascourt in the County of Dublin In the thirty third year of King H. 8. the said Hospital and Abbey were suppressed and dissolved and all the possessions of both the said Houses were vested in the actual possession of the Crown by Act of Parliament But in the said Act there is an Express Saving the Proxies to all Bishops and their Successors Afterwards the Bishop of Meth and his Clergy for that Bishoprick hath not any Dean and Chapter by Deed Inrolled Dated 16 March 36 H. 8. granted to the said Proxies inter alia to King H. 8. his Heirs and Successors the King being at the time of the Grant and after in the actual possession of the said Commandry and Rectory out of which the said Proxies were payable Afterwards Queen Elizabeth by her Letters Patent dated Primo Novemb. in the thirty third year of her Reign demised the said Commandry and Rectory to Dr. Forth And now whether he shall be charged with these Proxies and the Arrearages thereof after the commencement of the Lease was the Question And it was Adjudged that he should be charged therewith In the Argument of this Case there were Three points moved and debated 1 Whether the Proxies were wholly extinct by the suppression and dissolution of the said Religious houses notwithstanding the said Saving in the Act of Dissolution 2 Whether the Bishop could grant the Proxies to the King 3 Whether the Proxies in the hands of the King were extinct by the Unity of Possession For the First point it was Objected by Sir Ambrose Forth 's Counsel That the Proxies were extinct by the suppression and dissolution of the Religious houses For that the Visitation of the Religious houses were the sole cause of the payment of the Proxies Et cessante causa cessat effectus For the Religious houses being gone and dispersed they shall not be afterwards subject to Visitation and then when the Visitation doth cease the Proxies being only Exhibition given to the Visitor for his Travelling charges shall cease also For Procuratio as the Canonists define it est Exhibitio sumptuum necessariorum facta Praelatis qui Dioeceses peragrando Ecclesias subject as Visitant Yet it was agreed That the Visitation doth not cease immediately upon the Surrender or by the Act of Parliament which gives the Religious houses and their Possessions to the Crown for by that their Corporations are not dissolved as was held in the Case of the Dean and Chapter of Norwich Co. par 3. 15 Ass p. 8. 32 H. 8. Br. Corporations 78. But when the Religious persons were dispersed and had relinquished their Habit Rule and Order for which they were Visitable then their Corporation was utterly dissolved and thereupon the Visitation ceases And in this case they resembled a Proxie due for Visitation to an Annuity for Counsel or some other Service to be done if the Counsel or the Service be withdrawn the Annuity determines So if a Rent-charge be granted for a Way stop the Way and the Rent-charge shall be stopt also 9 Ed. 4. 19. 15 Ed. 4. 2. 21 Ed. 3. 7. So where a Corodie is granted for certain Service to be done the omission of the Service determines the Corody 20 Ed. 4. fo ult It was also said That the duty is not Annual but Contingent and payable only upon every Visitation And for the Saving they said it was a Flattering Saving which could not preserve the Proxies in being which the Law had extinguished as was held 14 Eliz. Dyer 313. That the tenures of the Obit or Chauntry-Lands held of the Subjects are extinct by the Act of 1 Ed. 6. notwithstanding the Saving in the said Act propter absurditatem So the Proxies in this Case shall be extinct propter absurditatem For as it is absurd that the King should be subject to Attendance in respect of a Tenure so it is absurd that the King should be subject to Visitation or to any duty in respect thereof Of the same nature there are many Savings put in Walsingham's Case Plow Com. 563. which are there called Flattering Savings As to the Second point it was objected That the Bishop could not grant these Proxies to the King for two Reasons the one drawn from the person of the King the other from the person of the Bishop 1 For the King Admit that he were capable of such a Spiritual Office as to be a Visitor of Religious persons yet he shall not have Proxies by reason of the Inconveniency and Indecency and also for the Impossibility thereof For it is neither Convenient nor Decent that the poor Religious persons should bear the Charges of the King And it is also Impossible for by the Canon Law Procuratio exhibenda est secundum qualitatem personae Visitantis and the Majesty of the person of the King and the grandure of his Train such that by presumption of Law no private person can bear his necessary charges or make him entertainment answerable to the quality of his person 2 For the Bishop Although he may grant his Temporal possessions with the assent of his Chapter or Clergy yet those duties which he hath by the prerogative of his Episcopal Chair or as incident to his Spiritual Function he may not grant And they by the Rule of the Canon Law are of Three sorts viz. 1 Subsidium Cathedrarium which is a duty of Prerogative and Superiority 2 Quarta Episcopalis which was given to him for Reparation of Churches 3 Procurationes for his Visitation as aforesaid which is a perquisite
them offend in any of the Premisses the persons deputing them if they be Bishops shall upon Admonition of their Superiour discharge the persons exceeding the Number so limited as aforesaid But if they were deputed by Inferiour Ordinaries such Ordinaries shall be suspended from the execution of their Office until they have dismiss'd the supernumerary Apparitors by them so deputed and the parties themselves so deputed shall for ever be removed from the Office of Apparitors And in case being so dismiss'd and removed they do not desist from the execution of their said Offices they are by the first said Canon to be proceeded against and punished by Ecclesiastical Censures as persons contumacious to the Jurisdiction And finally if upon experience the number of the said Apparitors be too great in any one Diocess in the judgment of the Archbishop of Canterbury for the time being in that case he is by the said Canon impower'd to abridge them to such a number as to himself shall seem meet and expedient An Apparitor came to the Church of a Parson and said to him He is to pay Tenths to such a one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop Certified That he refused to pay them according to the Statute of 26 H. 8. It was Resolved The Demand was not according to that Statute and the Summons to pay them not according to the Statute for the Demand ought to have been by one who hath authority to receive them which the Summoner had not And they held the Demand not good although the Bishop certified it was duly made And in the Case between the Queen and Blanch it was Resolved That the Certificate of the Bishop that the Incumbent refused to pay his Tenths is not Peremptory but Traversable and that the Demand of the Tenths must be at the house of the Incumbent and the Refusal there More 's Rep. 1225. In a Action upon the Case against the Defendant the Case was this A Summoner in the Ecclesiastical Court having a Citation against the Plaintiff Returned That he had Summoned the Plaintiff whereas in truth he never Summoned him for which the Plaintiff was Excommunicated to his great dammage It was adjudged that the Action did lie 13. By the Premisses it is manifest that the Canon is very strict and exact both in abridging the Number and redressing the Abuses incident to the Office of Apparitors which Canon in most Circumstances seems to run very parallel with that in the Provincial Constitutions Lindw Provin Constit de Censibus Procur cap. cum Apparitorum the light whereof did probably influence it into that Form wherein we now find it For by that Decree of the said Provincial Constitunions it is Ordained That a Bishop shall have unum Apparitorem Equitantem duntaxat where the Gloss well observes that by this non prohibetur Episcopo quin plures habeat pedites And every Archdeacon one in every Deanary non Equitantem sed peditem where the Bishop might also appoint Apparitors as also in Rural Deanaries Gloss ibid. verb. Duntaxat And in case more than these were Deputed or they found to offend in their Office the Penalty was as above-said Deputantes sint suspensi donec c. Deputatos ab Officio Apparitorum perpetuo suspendimus ipso facto Constit ibid. 14. Action upon the Case For that the Defendant being an Apparitor under the Bishop of Exeter maliciously and without colour or cause of suspicion of Incontinency of his own proper malice procured the Plaintiff Ex Officio upon pretence of Fame of Incontinency with one Edith whereas there was no such Fame not just cause of Suspicion to be cited to the Consistory Court of Exeter and there to be at great charges and vexation until he was cleared by Sentence which was to his great discredit and cause of great Expences and Losses for which c. upon Not guilty pleaded and found for the Plaintiff it was moved by Ashley Serjeant in Arrest of Judgment That in this Case an Action lies not For he did nothing but as an Informer and by virtue of his Office But all the Court absente Richardson held That the Action well lies For it is alledged That he falso malitiose caused him to be Cited upon pretence of Fame where there was no offence committed And avers That there was not any such Fame so as he did it maliciously and of his own head and caused him to be unjustly vexed which was to raise gain to himself whereupon they conceived That he being found guilty for it the Action well lies And therefore Rule was given to enter Judgment for the Plaintiff unless other cause was shewn And upon a second motion Richardson Ch. Justice being present Judgment was given for the Plaintiff The Consistory of the Bishop may in some Cases enjoyn Penance Where Penance is enjoyned there may be Commutation but there may not be Commutation for Penance where none is enjoyned Commutation for Penance agrees with the Customes used in the Ecclesiastical Law justified in the Common Law in the Statute of Circumspecte agatis in the time of Ed. 1. and Articuli Cleri in the time of Ed. 2. Vid. Mich. 21. Jac. B. R. Dr. Barker 's Case in Camera Stellata Roll's Rep. 15. Commissary Commissarius is a Title of Ecclesiastical Jurisdiction adapted to such one as doth exercise the same in such remote places of the Diocess and at such distance from the Bishops chief Consistory as that his Chancellor cannot without too great a prejudice conveniently call the Subjects to the same The duty of such Commissary or Officialis Fâranei is to officiate the Bishops Jurisdiction in the remoter parts of the Diocess or in such Parishes as are the Bishop's peculiar and exempt from the Archdeacon's Jurisdiction The Authority of the Commissaries of Bishops is only in some certain place of the Diocess and 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 Gloss in Clem. de Rescript And by the Canons and Constitutions Ecclesiastical no person may be a Commissary or Official under the Age of 26 years being at least a Master of Arts or Bachelor of Law Yet in the Argument of Buries Case for a Divorce the 5 Rep. 98. there was cited 35 Eliz. B. R. rot 605. That if a Lay-man be made a Commissary by the Bishop it is good until it be undone by Sentence although that the Canon says That he ought to be a Doctor or a Bachelor of Divinity But 21 H. 8. hath limited That a Doctor of the Civil Law may be a Commissary 16. Where a Commissary citing many persons of several Parishes to appear at his Visitation-Court Excommunicated them for not Appearing a Prohibition was granted because the Ordinary hath not
And the Judgment of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose where it is recited that the Bishop of Rome had deceived and abused the Subjects of the Crown of England pretendig and perswading them That he had full power to Dispence with all human Laws Vses and Customes of all Realms in all Causes which be called Spiritual which matter hath been usurped and practised by him and his Predecessors for many years to the great derogation of the Imperial Crown of England For whereas the said Realm of England recognizing no Superiour under God but the King hath been and yet is free from subjection to any mans Laws but only to such as have been devised made and Ordained within this Realm for the weal of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty and by their own consent to be used among them and have bound themselves by long use and custome to the observance of the same not as to the observance of the Laws of any Foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally established as Laws of the same by the said sufferance consent and custome and not otherwise it standeth with natural equity and good reason that all such human Laws made within this Realm or induced into this Realm by the said Sufferance Consent and Custome should be Dispenced with abrogated amplified or diminished by the King and his Parliament or by such persons as the King and Parliament should authorize c. Vid. 21 H. 7. 4. a. where it is said That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded that the King of England and not the Pope before the making of the said Statute of Faculties might de jure Dispence with the Ecclesiastical Law in that and other cases For although many of our Ecclesiastical Laws were first devised in the Court of Rome yet they being established and confirmed in this Realm by acceptance and usage are now become English Laws and shall no more be reputed Roman Canons or Constitutions As Rebuffus speaking De Regula Cancellariae Romanae de verisimili notitia Haec Regula says he ubique in Regno Franciae est recepta est Lex Regni effecta observatur tanquam Lex Regni non tanquam Papae Regula Papa eam revocare non potest The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical For whereas the Law of the Church is That every Spiritual person is Visitable by the Ordinary King William the Conqueror by his Charter Dispenced with the exempted the Abbey of Battell from the Visitation and Jurisdiction of the Ordinary in these express words Sitque dicta Ecclesia libera quieta in perpetuum ab omni subjectione Episcoporum quarumlibet personarum dominatione sicut Ecclesia Christi Cantuariensis c. whereby he Dispences with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis Ecclesiasticae Edit 1534. where that whole Charter is recited at large The like Charter was granted to the Abbey of Abingdon by King Kenulphus 1 H. 7. 23 25. and Cawdry's Case Co. par 5. fo 10. a. So likewise every Appropriation doth comprize in it a Dispensation to the Parson Imparsonee to have and retain the Benefice in perpetuity as appears in Grendon's Case Plow Com. 503. In which Act the King by the Common Law shall be always Actor not only as Supream Patron but also as Supream Ordinary as is also observed in Grendon's Case For the King alone without the Pope may make Appropriations 7 E. 3. Fitz. Quare Impedit 19. And in the Case of Malum prohibitum and Malum in se in 11 H. 7. 12. a. it is held That the King may dispence with a Priest to hold Two Benefices and with a Bastard that he may be a Priest notwithstanding the Ecclesiastical Laws which are to the contrary And as he may dispence with those Laws so he may pardon all Offences contrary to these Laws and his Pardon is a barr to all Suits pro salute Animae or reformatione morum and all Suits ex Officio in the Ecclesiastical Court Hall's Case Coke 5. par fo 51. In all Faculties or Dispensations for the holding of Two Benefices granted at the Court of Rome there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons and of the right of the King by name express where the Patronage belonged to him otherwise the Faculty was void For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature And if such a particular Non obstante were not added in the Faculty then there was inserted another Clause viz. Dummodo Patronorum expressus accedat Consensus also by another Clause Authority was always given to the Official or Archdeacon or other Ecclesiastical Minister to put him to whom the Faculty is granted into possession of the Benefice cum acciderit And because by the Canon Law the Patron 's consent was ever requisite in a Commenda for that reason in every Faculty or License granted by the Pope to make a Permutation Union or Appropriation of Churches these words were ever added viz. Vocatis quorum interest which chiefly intends the Patron And which Union and Approbation shall not according to the Common Law be made without the Patron 's assent Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Case Plow Com. 498. a. A Faculty or Dispensation is of such force that if a Clerk be presented to a Benefice with Cure and be Admitted Instituted and Inducted into the same so that the Church is full of him if afterwards he be presented to another Benefice Incompatible or elected to a Bishoprick and before he is Instituted to the second Benefice or be created Bishop he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo that is for his life that Faculty or Dispensation shall be of such effect that the former Benefice shall not be void by acceptance of the Second or by promotion to the Bishoprick but he shall remain full and perfect Incumbent of the first Benefice during his life In the time of H. 6. when Henry Beaufort Great Uncle to the King being Bishop of Winchester was made a Cardinal and after that purchased from the Pope a Bull Declaratory that notwithstanding he were made Cardinal yet his Bishoprick of Winchester should not be void but that he might retain the same as before yet it was held That the See of Winchester was void by assuming the Cardinalship which
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
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
28. 2 He is an Ecclesiastical Officer and therefore proper to the Ecclesiastical Judge to have Jurisdiction of his Account And a Clerk of a Parish may sue in the Ecclesiastical Court for his Fees which are called Largitiones Charitativae vid. Register fo 52. for he is quodammodo an Officer Spiritual 21 E. 4. 47. But notwithstanding this a Prohibition was granted And Mountague Chief Justice said That a Churchwarden is not an Ecclesiastical Officer but Temporal employed in Ecclesiastical business Quaere Whether in that case the Minister may require him to render an Account and if he refuse Whether the Ecclesiastical Judge may compel him to Account 20. In Trespass by Churchwardens for taking a Bell out of the Church in the time of their Predecessors it was Adjudg'd That the Action did lie whereas it was declared ad damnum ipsorum which shall be supposed ad damnum Parochianorum 21. The Parishioners of the Parish of Al-Hallowes in London did prescribe to chuse their Churchwardens every year and they chose W. their Churchwarden The Parson by virtue of a late Canon that he should have the Election chose C. to be Churchwarden and procured him to be Sworn in the Ecclesiastical Court and a Prohibition was prayed for that it being a Special custome the Canons cannot alter it and if every Parson might have Election of the Churchwardens without the assent of the Parishioners they might be much prejudiced And so it was said That it had been Adjudg'd Pasch 5 Jac. in the case of the Parishioners of Walbrook in London 22. Although as aforesaid the Law doth make Church-wardens a kind of Corporation and enables them by that Name to take moveable Goods and Chattels and to sue and be sued at Law concerning such Goods for the use and benefit of their Parish yet they cannot take an Estate of Lands to them by name of Church-wardens nor can Churchwardens prescribe to have Lands to them and their Successors for they are no Corporation to have Lands but for Goods of the Church only CHAP. XIV Of Consolidation or Vnion of Churches 1. Consolidation what whence so called by whom and in what cases it may be made 2. The several kinds of Consolidation 3. The reasons and grounds thereof in the Law 4. The Requisites of Law in order to a Consolidation 5. How Consolidation is practised here with us and how in France 6. The division or distinction which the Canon Law makes of Consolidation 1. COnsolidation is the uniting combining or consolidating of two Churches or Benefices in one This cannot be done without the consent of the Bishop the Patron and the Incumbent This word thus used in an Ecclesiastical sense takes its denomination from what the Civil Law intends by consolidating the Interest of Possession and Property together which in that Law is called Consolidatio ususfructus proprietatis As when a man having the Usufruct of certain Lands by way of Rent Devise or otherwise doth then and at the same time purchase the Fee or Inheritance thereof hoc casu Consolidatio fieri dicitur Instit de Vsufruct § 3. So that in such Secular concerns according to that Law it properly signifies an Uniting of the possession occupation or profit with the Property of the thing so prepossessed which is sometimes called an Vnity of possession being a Joynt-possession of two Rights in the same person by distinct and several Titles By the Statute of 37 H. 8. cap. 21. it was lawful to make an Union or Consolidation of two Churches in one whereof the value of the one was not above six pounds in the King's Books of the First-Fruits and not above one mile distant from the other And by a late Statute of 17 Car. 2. cap. 3. it may be lawful for the Bishop of the Diocess Mayor Bayliffs c. of any City or Town Corporate and the Patron or Patrons to unite two Churches or Chappels in any such City Town or the Liberties thereof provided the Churches so united exceed not the annual value of an hundred pounds unless the Parishioners esire otherwise See the Statute at large 2. By this Consolidation or Union of Churches one of the Benefices becomes void yea extinct in Law Illud enim quod alteri unitur extinguitur neque amplius per se vacare dicitur DD. in c. cum accessâssent de Constit Iudo Gomez in Regul Cancell Gall. de Trien possess q. 8. Jo. Andr. ad Clem. 1. de Supplen Neglig Praelat Again the Law in express terms says That intereunt Beneficia Vnione quando duo vel plura Beneficia in unum in perpetuum conjunguntur c. Sicut unire de Excess Praelat Of this Consolidation or Union the Law makes a threefold distinction or it may be done three several ways in construction of Law 1 When one and the same person is set or appointed over two Churches Can. temporis qualitas 16. q. 1. c. 1. Ne Sede vacante This with us amounts to a Plurality but not unto a Consolidation or Union 2 When one Church is so united to another that that which is United amittit jus suum eo utitur cui fit unio c. Recolentes § sin de Stat. Monac Lindw de Locat Conduct c. licet glo verb. Appropriationum 3 When Two or more Churches or Benefices are so united together as that the one is not subject to the other in which case Quod melius est retinetur arg c. Medicamentum de poenit dist 1. gl in regu 11. Cancell Innoc. 8. 3. There are several Causes or Reasons in the Law for this Consolidation Incorporation Annexation or Union of Churches and they are chiefly these five 1 An unlawful dividing of those Churches or Ecclesiastical Benefices precedent to their reintegration or intended reconsolidation as when such as had been formerly united were illegally divided Otho Constit Ne Ecclesia una c. cum sit ars gl ib. in ver Reintegrentur 2 For the better Hospitality and that the Rector might thereby be the better enabled to relieve the Poor 25. q. 2. posteaquam § his ita dict gl Otho Const 3 The overnighness of the Churches each to other in point of Scituation insomuch that one Rector may commodiously discharge the Cure of both by reason of the vicinity of the places Arg. extr de Praebend c. Majoribus 4. For or by reason of a want or defect of Parishioners as when one of the Churches is deprived of her people by some incursion of an Enemy or by some mortal Disease or Sickness or the like 11. q. 1. Vnio gloss ubi supra 5. For and by reason of the extream Poverty of one of the Parishes Extr. de eta qua eam te Extr. de Praebend vacant in fin vid. Tholos Syntagm jur lib. 17. cap. 5. nu 7. All which Causes or Reasons of Consolidation are enumerated out of the Canon Law by John dè Aton in his Gloss upon Cardinal
Otho's Constitutions and whatever other causes of Consolidation are asserted by the DD. may be all referr'd to one or other of the foresaid Reasons Likewise there are certain Solemnities required by the Canon Law to be used and observed in the consolidation and union of Churches and Ecclesiastical Benefices the impracticability whereof in this Realm having otherwise provided in such cases can have no such malign influence in Law as to invalidate the thing for want of some Circumstantials so long as there is a retention of the Essentials according to the Laws and Constitutions of this Kingdom Vnio facta ab Episcopo debet intervenire Consensus Capituli sui Clem. si Vna de reb Eccl. non aliend Item requiritur Consensus Patroni Clem. in agro § ad haec de Stat. Mona Item Nullum habet effectum vivente Beneficiato Card. Zab. in dict Clem. Si una c. Item Verus valor Beneficiorum Exprimi debet c. 4. In all Consolidations regularly there ought to be Causa Necessitatis vel Vtilitatis Also the just and true value of the Benefices ought to be known as well of that which is to be united as of that to which the other is unitable in order whereunto there ought to issue a Commission of Enquiry touching the said cause and value at which all persons pretending Interest are to be or may be present upon Summons or Notice thereof timely given them to that end for no Consolidation or Union of that kind ought to be made non vocatis vocandis Rebuff Resp 195. 5. This Form touching Consolidations and union of Churches and Ecclesiastical Benefices is practiced in France which though there appears nothing therein but what seems consonant to Reason yet the Statute-Laws of this Realm have herein made other provision in this matter And that which we now commonly call Consolidation the Canon Law which is best and most properly acquainted with this matter calls Vnion Touching which there are in use and practice many things in divers Nations and Countries which were Incognita to the Interpreters of that Law and not in all things consonant to each other thereby rendring this Subject the more perplexed by reason of the several modes of practice diversified according to the various Constitutions of several Nations respectively for which reason the Interpreters of the Canon Law are the less positive in reducing the state of this matter to such a point of certainty as may be said Infallible in Law only they all agree in some certain Essentials to an Union as also for the most part in this Definition thereof viz. That Vnio est Beneficiorum seu Ecclesiarum ab Episcopo vel ab alio Superiore facta annexio To which this also may be added by way of description though not by way of definition That quando fit unio Ecclesia in proprietatem concedi solet Cap. in cura de jur Patronat and it must be Vnio Beneficiorum for there cannot be an Union unless there be plura Beneficia in the case L. 1. per totum ff de Optio Legat. Also it is Beneficiorum seu Ecclesiarum because the word Benefice is in it self a general term comprehending all Benefices great and small Regular and Secular Dignities and Offices C. 1. de reg jur in 6. c. extirpandae § qui vero de Praebend So that Bishopricks as well as other Benefices may be united and annexed But a Bishoprick which the Law calls culmen Dignitatis doth not regularly fall under the name or notion of Benefice c. pen. de Praebend and yet two Bishopricks may be united c. Decimas seq 16. q. 1. Rebuff de Vnion Benefic nu 4 5. 6. This Consolidation or Union at the Canon Law is either Perpetual or Temporal if Perpetual then it must be so expressed in the Union that in perpetuum univimus c. exposuisti de Praeb if Temporal then it is only for his life in whose favour the Vnion is made c. 1. ne Sede vacante and at his death it expires c. quoniam Abbas de Offic. Delegat But the Practice with us knows nothing of the Temporal Member of this distinction nor is the practice thereof at this day received in France Rebuff ubi supr nu 9. such Temporal Unions being only in contemplatione personae non Ecclesiae whereas the Law is Ecclesiae magis favendum est quam personae Dic. c. 1. c. requisisti de Testa Oldr. Consil 257. And where two Parochial Churches are consolidated or united that Church to which the other is united shall be the Superiour and principal the other which is united is the Inferiour and Accessory yet shall enjoy the Priviledges of that Church to which she is united c. recolentes in fin de stat Monach. Lastly The more worthy Benefice is never united to the minus digno and therefore a Parochial Church may not be united to a Chappel sed è contra Sic c. exposuisti de Praebend CHAP. XV. Of Dilapidations 1. What Dilapidation signifies how many waies it may happen the Remedies in Law in case thereof and to what Court the cognizance thereof properly belongs 2. Provision made by the Canon for prevention of Dilapidations 3. Dilapidation twofold in construction of Law An Exposition of the said Canon the Bishops power of Sequestration in case of Dilapidation 4. By whom the Body of the Church and by whom the Chancel shall be kept in repair How the charge of Repair in the case of Dilapidations shall be apportioned and what the Law in such cases where one Parish is divided into Two 5. Dilapidation of Ecclesiastical Edifices a good cause in Law of Deprivation 6. The Injunction of King Ed. 6. for prevention of Dilapidations 7. Leases made by a Parson void by Statute for Non-residence to prevent Dilapidations 8. The wasting the Woods of a Bishoprick a Dilapidation in Law such Woods being the Dower of the Church 9. A Vicar felling down Timber Trees and Wood in the Church-yard is a Dilapidation and good cause of Deprivation 1. DIlapidation is the Incumbents suffering the Chancel or other the Edifices of his Ecclesiastical Living to go to ruine or decay neglecting to repair the same It extends also to his committing or suffering to be committed any wilful Waste in or upon the Glebe-woods or other Inheritance of his Church Against which provision is made by the Provincial Constitutions whereof Sir Simon Degge takes notice in his Parsons Counsellor though in truth the Canon there provides rather as to satisfaction for than prevention of such Dilapidations Lindw c. si Rector alicujus Ecclesiae Gloss ibid. But the Canon Law is express and full in all respects relating to this implicit Sacriledge nor doth the Custome of England or the Common Law leave the Church without sufficient Remedy in this case albeit it postpones the satisfaction of dammages for Dilapidations to the payment of Debts as the Canon Law prefers it before the payment of Legacies
Sir Simon Degge in the forementioned place makes mention of the Inhibition out of Chancery to the Bishop of Durham by order of Parliament in Edward the First 's time for wasting the Woods belonging to that Bishoprick Also of the Archbishop of Dublin's being Fined three hundred Marks for disforresting a Forrest belonging to his Archbishoprick Likewise that by several Books of the Common Law a Bishop c. wasting the Lands Woods or Houses of his Church may be deposed or deprived by his Superiour And in case any Parson Vicar c. shall make any Conveyance of his Goods to defraud his Successor of his Remedy in case of Dilapidations in that case it is provided by the Stat. of 13 Eliz c. 2. that the Spiritual Court may in like manner proceed against the Grantee as otherwise it might have done against the deceased Parson's Executors or Administrators and all such Grants to defraud any person of their just actions were made void by a later Statute It is agreed That the cognizance of Dilapidations properly and naturally belongs to the Ecclesiastical Jurisdiction and no Prohibition to lie in the case or if such happen to be granted then the same to be superseded by a Consultation yet it seems Actions upon the Case grounded upon the custome of England have been brought in this case at Common Law and Dammages recovered It is also enacted by the Statute of 14 Eliz. That that Moneys recovered upon dammages for Dilapidations shall be expended in and upon the Houses c. dilapidated 2. Cardinal Othobon in his Canon De Domibus Ecclesiarum resiciendis hath constituted and ordained That all such Ecclesiastical persons as are Beneficed take special care that from time to time they sufficiently repair the Dwelling-houses and other Edifices belonging to their Benefices as oft as need shall so require unto which duty they are earnestly and frequently to be exhorted and admonish'd as well by their Diocesans as by the Archdeacons And if they shall for the space of two months next after such Monition neglect the same the Bishop of the Diocess may from thenceforth cause it to be effectually done at the Parson's charge out of the profits and fruits of his Church and Benefice taking only so much and no more as may suffice for such Repairs And the Chancels of Churches to be in like manner repair'd by those who are obliged thereto And as to Archbishops Bishops and other inferiour Prelates they are by the said Canon enjoyn'd to keep their Houses and Edifices in good and sufficient Repair sub divini Judicii attestatione Constit Othobon de dom Eccl. reâiâ Sub divini Judicii attestatione h. e. damnationis aeternae in extremo Calâulo glo in ver Sub divini Const Othobon de resident Archiepisc 3. By the Gloss on that Canon it is inferr'd That a Parson may be guilty of Dilapidations or of a Neglect in that kind two waies viz. either by not keeping the Edifices in good repair or by not repairing them being gone to decay That Canon chiefly refers to the Mansion-houses of all Benefices Ecclesiastical and that not only of all Parsonages and Rectories but also of all Bishopricks and of all Curates and Prebends and of all others having Ecclesiastical Livings but not specially by the words of this Canon unto their Farm-houses though they also are by the Canon Law provided for in case of Dilapidations And such as neglect the Reparations aforesaid may be accused and convicted thereof before the Diocesan who hath power to sequester the Fruits of such Benefice for the Reparations aforesaid Gloss in ver cessaverit in dict Can. such Fruits thereof being in construction of Law as it were tacitly hypothecated by a certain kind of Priviledge for such Indemnity and for that reason the Bishop in some cases may for that end sequester the same 4. And whereas in the abovesaid Canon it is said That Chancels shall be kept in repair by such as are thereunto obliged it is to be understood that that is spoken by way of allusion to the common Custome in England whereby the Body of the Church is usually repaired by the Parishioners and Chancels by the Rectors who notwithstanding ought to be at the care though not at the costs of the other also he being annually accountable to the Bishop for the same if the Bishop so please for which reason the Rector hath power to audit the Accounts of the costs and charges about the same as also what shall be given or bequeathed by way of Legacy for that end and purpose And where this custome prevails That the Parishioners shall repair the Body of the Church it is not to be understood that this is incumbent on them as a Real but as a Personal duty or burden yet every Parishioner proportionably to that quantity of Land which he holds within the Parish and number of Cattel he feeds on the same Gloss ibid. in ver ad hoc tenentur And in case one Parish be by legal Authority divided into Two in that case if such division were made by and with the consent of these Four viz. the Bishop the Patron the Parson and the Parishioners then the more Ancient Church shall not contribute to the Reparations of the New for that now they are two dictinct Parishes Gloss ibid. 5. Sir Ed. Coke in the third part of his Institutes having spoken of erecting of Houses and Building c. tells us what he finds in the Books of the Common Law and Records touching Dilapidations and decay of Buildings and having Margined as here in this Margent says That Dilapidation of Ecclesiastical Palaces Houses and Buildings is a good cause of Deprivation 6. By the Injunctions of King Ed. 6. An. 1547. to all his Clergy it is required That the Proprietors Parsons Vicars and Clarks having Churches Chappels or Mansions shall yearly bestow upon the same Mansions or Chancels of their Churches being in decay the fifth part of their Benefices till they be fully repaired and the same so repaired shall alwaies keep and maintain in good estate Consonant to which is the Thirteenth Article of Queen Elizabeths Injunctions given to all the Clergy An. 1559. 7. The Case was where the Parson made a Lease to the Plaintiff for 21 years after the Statute of 13 Eliz. of Lands usually Lett rendring the ancient Rent the Patron and Ordinary confirmed it the Lessee lett part of the term to the Defendant the Parson died the Successor entered and leased to the Defendant against whom the Lessee brought Debt upon the former Lease who pleaded the Statute of 13 Eliz. which made all Leases void where the Parson is not resident or absent for 80 daies It was Adjudged That the Lease was void by the death of the Incumbent for the Justices said The Statute doth provide against Dilapidations and for maintenance of Hospitality and therefore provided the Leases shall be void not only for Non-residence
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
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
The Statute of 13 El. cap. 12. Ordained That the Articles agreed by the Archbishop and Bishops of both Provinces and all the Clergy in the Convocation held at London c. shall be read by the Incumbent otherwise he is ipso facto deprived Or admitting all these Requisites have had their due performance so that he is a compleat Parson to all intents and purposes of Law whatever yet he may not under pretence of this or that Custome extend the Lines of his Parsonage beyond its due limits or bounds out of an Avaricious design to advance the perquisites of his Parsonage 5. Edward Topsall Clerk Parson of St. Botolphs without Aldersgate London and the Churchwardens of the same Libelled in the Ecclesiastical Court against Sir John Ferrers and alledged that there was a Custome within the City of London and specially within that Parish That if any person being Man or Woman die within that Parish and be carried out of the Parish to be Buried elsewhere that in such case there ought to be paid to the Parson of this Parish if he or she be buried elsewhere in the Chancel so much and to the Churchwardens so much being the Sums that they alledged were by Custome payable unto them for such as were buried in their own Chancel And then alledging that the Wife of Sir John Ferrers died within the Parish and was carried away and buried in the Chancel of another Church and so demanded of him the said Sum. Whereupon for Sir John Ferrers a Prohibition was prayed by Serjeant Harris and upon debate it was granted For this Custome is against Reason That he that is no Parishioner but may pass through the Parish or lie in an Inne for a night should if he then die be forced to be Buried there or to pay as if he were and so upon the matter to pay twice for his Burial 6. The words Parsonage Church and Rectory are frequently in the Law used Synonymously and promiscuously but the word Advowson is another thing and distinct from each of them And as to some Parsonages there are certain Rents due and payable so out of some Parsonages or Rectories there are issuing certain Rents or Pensions which Pensions are not suable at the Common Law but in the Ecclesiastical Court as was said in Crocker and York's Case against Dormer against whom they had a Recovery in a Writ of Entry in the Post among other things of a yearly Rent or Pension of four Marks issuing out of the Church or Rectory of F. In which Case it was agreed by Clench and Fenner that a Pension issuing out of a Rectory is the same with the Rent of which Popham seemed to make some doubt for there being in that Case a Demand for Rent in the Disjunctive viz. a Rent or Pension he moved that the greatest difficulty in the Case was the Demand made in the Disjunctive viz. of an Annual Rent or Pension for if a Pension issuing out of a Rectory shall be said to be a thing meerly Spiritual and not to be demanded by the Common Law or meerly of another nature than the Rent it self with which it is there conjoyn'd by the word or that then it is Erroneous 7. B. brought an Action of Debt against W. upon an Obligation of 600 l. the Condition was That if W. Resign a Benefice upon Request that then the Obligation should be void And the Condition was Entered the Defendant Demurred and Judgment in B. R. pro Querente And upon Error brought Judgment was Affirmed in the Exchequer for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Glebes viz. per Non-Residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawful As if a Patron which hath a Son which is not yet fit to be presented for default of Age and he present another with an Agreement that when his Son come to the Age of 24 years he shall Resign it it is a good Obligation And this Case viz. an Obligation with Condition to Resign had been Adjudged good in the Case of one Jones An. 8 Jac. And the Counsel said That he who is presented to a Church is Married thereto and it is like as if a man who hath married a Wife should be bound to be divorced from her or not cohabit with her these Conditions are void But these resemble not our Case 8. It was said in Johnson's Case That if a Parson Leases his Rectory for years or parcel of his Glebe reserving a Rent and dies if his Successor accepts the Rent that Acceptance does not make the Lease good because by his death the Franktenement is in Abeyance and in no Man And also a Parson cannot Discontinue And by consequence That that he did without Livery is determined by his death And it is not like to the Case of an Abbot Prior or Tenant in Tail 9. Hendon moved for Dr. Clay Vicar of Hallifax That a Prohibition might be granted to the High Commissioners of York for that that these Articles by one Smith were exhibited against him viz. 1. That he read the Holy Bible in an irreverent and undecent manner to the scandal of the whole Congregation 2. That he did not do his duty in Preaching but against his Oath and the Ecclesiastical Canon had neglected for sundry Mornings to Preach 3. That he took the Cups and other Vessels of the Church consecrated to holy use and employed them in his own House and put Barm in the Cups that they were so polluted that the Communicants of the Parish were loath to drink out of them 4. That he did not observe the last Fast Proclaimed upon the Wednesday but on the Thursday because it was an Holy-day 5. That he retained one Stepheson in one of the Chappels of Ease who was a man of ill Life and Conversation viz. an Adulterer and a Drunkard 6. That he did not Catechize according to the Parish-Canon but only bought many of Dr. Wilkinson's Catechisms for every of which he paid 2 d. and sold them to the Parishioners for 3 d. without any examination or instruction for their benefit And that he when any Commissions were directed to him to compel any person in his Parish to do Penance he exacted money of them and so they were dismissed without inflicting any penalty upon them as their Censure was And that he and his Servants used divers Menaces to his Parishioners and that he abused himself and disgraced his Function by divers base Labours viz. He made Mortar having a Leathern-Apron before him and he himself took a Tithe-Pigg out of the Pigsty and afterwards he himself gelded it And when he had divers Presents sent him as by some Flesh by some Fish and by others Ale he did not spend it in the invitation of his Friends and Neighbours or
give it to the Poor but sold the Flesh to Butchers and the Ale to Ale-wives And that he commanded his Curate to Marry a Couple in a private House without any License And that he suffered divers to Preach which peradventure had not any License and which were suspected persons and of evil Life It was said by Henden That they cannot by the Statute of 1 Eliz. cap. 1. meddle with such matters of such a nature but only examine Heresies and not things of that nature and that the High Commissioners at Lambeth certified to them that they could not proceed in such things and advised them to dismiss it but they would not desist And the Judges Richardson being absent granted a Prohibition if cause were not shewn to the contrary 10. A Parson makes a Lease for 21 years the Patron and Ordinary confirm his Estate for 7 years the Parson dies The Question is Whether that Confirmation made the Lease good for 21 years or but 7 years And it seemed to Hutton That the Lease was Confirmed but for 7 years But Richardson was of the contrary Opinion and took a difference where they Confirm the Estate and where they Confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Lease for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Serjeants at the Barr. And afterwards Hutton said That that was a good Cause to be considered and to be moved again 11. In a Replevin And the Title was by Lease made by a Parson And the Avowry was That A. was seized of the Rectory of H. and made the Lease without shewing that he was Parson And by the Court That that should have been a good Exception if it had not been said in the Avowry moreover That A. was seized in juâe Ecclesiae which supplies all 12. During the time of the Parson the Patron hath nothing to do in the Church And therefore if the Patron grant a Rent by Fine out of the Church the Church being then full and afterwards the Incumbent dies that charge shall not bind the Successor for that the Parson and the Ordinary were no parties to it 13. If a Parson would Resign the word Resignare is not it seems the only proper word in the Law for Resignation but Renunciare Cedere Demittere are the usual words or terms of Resignation Yet if a Prebend doth give grant yield and confirm his Prebendary and the Possessions thereunto belonging unto the Ordinary To have and to hold to him and his Successors in Fee subjecting and submitting to him Omnia jura by reason thereof qualitercunque acquisita these words it seems are sufficient and amount to a Resignation albeit the proper words are not therein Which Resignation ought to be made to the Immediate Ordinary and not to the Mediate for which reason a Prebend may not Resign to the King for that although he is Supream Ordinary yet he is not the Immediate Ordinary and he is not bound to give Notice to the Patron as the Ordinary ought nor of himself can Collate but is to present to the Ordinary 14. In Trespass The Case was The Defendant being Incumbent of the Church of B. M. and G. having the Donation thereof made an Instrument whereby Concessit Resignavit to M. omnibus ad quos in hac parte pertinet ad acceptandam Ecclesiam suam de B and thereupon the two parties gave it to the Plaintiff who being disturbed by the Defendant brought Trespass The Question was whether a Resignation of a Donative could be to the Donor or how it might be departed with Resolved 1 That this being a Donative begun only by the Foundation and Erection of the Donor he hath the sole Visitation and the Ordinary hath nothing to do therewith and as the Parson comes in by the Donor so he may restore it to him and although the Presentee when he is in hath the Freehold yet he may revest it by his Resignation without any other Ceremony and the Ordinary hath nothing to do with it For Admission and Institution are not necessary in case of a Donative 2 Resolved That the Resignation to one of the parties is good for it doth enure to both as a Surrender shall do 3 Resolved That although the Resignation was de Ecclesia yet it shall extend to all the Possessions 15. At a Synod in 44 Ed. 3. a Canon was made That the Parson of every Church in England shall appoint the Parish-Clerk And at another Synod held in An. 1603. a Canon was made to the same effect and yet it doth not take away the Custome where the Parishioners or Churchwardens have used to appoint the Clerk because that is Temporal which cannot be altered by a Canon If the Clerk of a Parish in London hath used time out of mind to be chosen by the Vestry and afterwards Admitted and Sworn before the Archdeacon and he refuse to Swear such Clerk so Elect but Admits another chosen by the Parson In this Case a Writ may be awarded commanding him to Swear the Clerk chosen by the Vestry 22 Jac. Walpool's Case The like Writ was granted for the Clerk of the Parish of St. Fosters London Mich. 16 Car. B. R. between Orme and Pemberton The Parishioners of the Parish of Alphage in Canterbury prescribed to have the Nomination and Election of their Parish-Clerk and the Parson of a Parish by force of a Canon upon voidance of the place of the Parish-Clerk elected one to the Office The Parishioners by force of their Custome elected C. the Parson supposing this Election to be Irregular for that it was against the Canon Sued C. before Dr. Newman Chancellor of Canterbury and the said C. was by Sentence deprived of the Clerkship of the Parish and another Clerk of the Parish Admitted C. moved for a Prohibition and had it granted by all the Court for it was held That a Parish-Clerk is a meer Lay-man and ought to be deprived by them that put him in and no others and the Canon which willeth that the Parson shall have Election of the Parish-Clerk is meerly void to take away the Custome that any person had to Elect him Vid. Stat. 25 H. 8. That a Canon against Common Law confounding the Royal Prerogative of the King or Law of God is void and Custome of the Realm cannot be taken away but by Act of Parliament vid. 21 Ed. 4. 44. And it was Resolved That if the Parish-Clerk misdemean himself in his Office or in the Church he may be Sentenced for that in the Ecclesiastical Court to Excommunication but not to Deprivation And afterwards a Prohibition was granted by all the Court and held also That a Prohibition lieth as well after Sentence in this case as before And in Jermin's Case Whereas the Churchwardens and Parishioners of K.
like which without such a Faculty would have avoided it 4. The Semestral Commendatary is not reputed Praelatus but Procurator Administrator habens titulum Canonicum It doth make Fructus suos but ad providendum sibi Ministris and what remains is to be converted to the use of the Church Greg. X. in Concil Lugd. An. 1275. Gloss in cap. Nemo 15. De Electione in Sexto And John d'Atbon upon Othobou's Canon or Constitution De Commendis Ecclesiarum says That Commendare idem est quod Deponere seu Custodiae Committere And all agree that such a Commendatary is not Praelatus but Procurator habet tamen Legitimam Administrationem ad Colligend providend Ministris ea vero quae supersunt ad utilitatem Ecclesiae convertenda Commendare ut ait Papin nihil aliud est quam deponere l. Lucius ff Deposit l. Commendare ff de verb. Sig. l. Publia ff Deposit Gloss ibid. But as to a Perpetual Commendam Perpetuity and the disposal of the Fruits must concur And as a Patron cannot Present to a Church Full so neither can a Commendam be made to a Church certain that is then Full for there is no difference betwixt a Commendam and a Presentation but that the one Presents the Parson to the Church the other commits the Church to the Parson both being incompatible when the Church hath his proper Rector The Canons also speaking of Commendams rely much upon Ecclesias vacantes necessitatem utilitatem Ecclesiae vacantis And Commendams were not made anciently in general terms to any Churches uncertain but to some certain Church then void Also the Patrons consent is necessary to a Commendam secundum omnes Patroni consensus omnium qui laedi possunt requiritur And again Quod satis observant Praelati qui nisi Praesentati per Patronos non faciunt Commendas Gloss in Concil Lugd. Othob Provin Hob. Rep. in dict Cas Colt and Glover vers Bishop of Covent and Lichfield Likewise it is further asserted by Sir Hen. Hobart in the Case aforesaid That the Temporary Commenda brings with it so many Incongruities Inconveniences and Absurdities in Law as cannot be born for thereby the Church is neither altogether void as it remains in the Case of a Commendam Semestris which is but a Sequestration of Fruits and Cure till the Patron Presents neither is the Church absolutely Full for then it should be Plena Consulta h. c. plena de possessore consulta de Rectore 5. Commenda in the Canon Law hath a nigh affinity to Collation Rebuff in § Statuimus in ver conferantur de Collat. and is a Canonical Institution or a Canonical Title cap. Dudum in 2. de Elect. Etsi in titulum non detur Ecclesia and when the Commendatary dies the Benefice is void ut alia in titulum possessa Rebuff de pacif Possess nu 42 43 44. The Pope was wont to provide by a Commendam when he gave a Benefice in Custodiam that he that had the Custody thereof should not thereof have fructus suos cap. Nemo de Elect. in 6. but should restore the same Can. placuit 10. q. 3. unless he express'd in the Grant as he often did that the Commendatary should convert the Fruits thereof to his own use It is in Law provided by the Commendam that the Commendatary shall not be nor said to be Titularius Ecclesiae concessae because he hath another at the same time and together with that he cannot aliam habere in titulum cap. dudum in 2. de Elect. cap. fin 21. q. 1. For the Law compares the Relation that is between a Rector and his Church to that of Man and Wife and in express terms calls it Matrimonium cap. sicut vir q. 1. and says it is as odious to have more Benefices than one at once as more Wives than one at once cap. de multa de Praebend whence it may aptly be inferr'd That Plurality is a kind of Spiritual Bigamy or Polygamy Moreover by the Canon Law a Commendam may be either for a certain time or for life cap. Extirpandae § quia vero De Praeben c. nemo de Elect. in 6. And during the vacancy of a See the Chapter may grant the Commendam ad tempus c. significatum de Praeb dict c. nemo If the Commendam be granted in Perpetuity or for life it is vice tituli Nam ad tempus Collatio fieri nequit Beneficii c. si gratiose de Rescript c. satis perversum 66. Dist In the Church of Rome there are certain Benefices which were never wont to be given in Commendam such as that of the Holy Ghost in Sicily St. John of Jerusalem St. Anthony the Blessed Virgin Mary and others and this by a Constitution of Pope Alexander the Sixth as a mark of grace because they were given to the Fraternity of these Orders in titulum Rebuff de Commendis nu 41. Prox. Benef. 6. Whether any man Inferiour to a Bishop may Ecclesiam Commendare is a Question moved by Rebuffus who holds it in the Affirmative provided it be a Commenda only ad Tempus that is only for Six months Rebuff Respon 71. de Commenda which opinion Panormitan seems to be of by saying Inferiorem à Papa non posse Perpetuo Commendare sed ad Tempus sic Panorm in c. si constiterit in 1. notab de Accusat For the Canonists of the Romish Church do hold That Commendare in perpetuum potest solus Papa Ad tempus sex mensium quilibet Ordinarius potest Likewise Panormitan says further That a Chapter Sede vacante possit usque ad sex menses Commendare Panor Felin in c. cum olim 11. q. de Major obed Jo. Francisc in Tract de Offic. potest Capituli Sede vacante in 2. part q. 3. whence Rebuffus concludes that any other qui Beneficia conferre potest may do the like it being as a Rule in Law That illud videtur permissum quod non est prohibitum c. nam concupiscentiam de Consti L. praecipimus C. de Appellat The Canon Law to which only we are beholding for the clearest apprehensions we can possibly have of Commendams allows a very extensive Latitude to the Pope in the granting and revoking thereof but this doth not concern us further than as the Popes Ecclesiastical power heretofore exercised in this Realm by way of Usurpation is now vested in the King de jure yet it will be agreed on all hands That a Commendam in the very nature of it is meerly and properly Custodial that Church or Benefice being then granted in Commendam quando in custodiam seu Custodiae causa datur c. nemo de Elect. in 6. And as he who hath only the Custody of a thing non facit fructus suos so neither he according to the Canon Law who hath a Commendam without the Popes special grant thereof to the Commendatary c.
gains not the Patronage from the Crown 3. The Ordinary's Collation by Lapse is only in the Patron 's right 4. What Presentation is and how in ease of Co-heirs or Joynt-tenants or Tenants in Common 5. Whether the Grantee of the next Presentation not Presenting at the First Avoidance shall lose the benefit of his Grant 6. The Right of Presentation is not an Ecclesiastical but Temporal Inheritance and cognizable at the Common Law 7. The power of the Ordinary in case of Coparconers Joyntenants or Tenants in Common as to Presentation 8. In what Case the Bishop hath Election whose Clerk he will Admit 9. Whether a Presentation is revokable before Institution 10. Whether the Son may succeed his Father in the Church and who may vary from or repeal his Presentation 11. What Nomination is and the Qualifications thereof 12. In what Case the Presentation is the Nomination or both as one in Law 13. In what case the Nominator shall have a Quare Impedit as well as he that hath Right of Presentation And there may be a Corrupt Nomination as well as a Corrupt Presentation 14. Whether the Collatee be Incumbent if the Bishop Collate him within the Six months And in what Case the Kings Presentation within the Six months may be an Vsurpation or not 15. Where the Ordinary Collates the Patron is to take notice of it at his peril 16. Who shall Present in case the Ordinary to whom a Lapse is devolved be within the Six months translated to another Bishoprick 17. A Resignation to a Proctor without the Bishops Acceptance makes not the Church void 18. A Parochial Church may be Donative exempt from the Ordinary's Jurisdiction and is Resignable to and Visitable by the Patron not the Ordinary 19. Where Two are to Present by Turns what Presentation shall serve for a Turn or not 20. By the Canons the Son may not succeed the Father in the same Church 21. To what a Presentation may be made 22. The Kings right of Presentation as Supream Patron 23. In what case the Kings Prerogative to Present doth not take place 24. In what Cases it doth 25. To whom the Patronage of an Archbishoprick belongs 26. Whether Alien Ministers are Presentable to a Church in England 27. In what Cases the Patron may Present de novo 28. Difference between the King and a Common person in point of Presentation 29. A Collation makes no Plenarty where it is tortious 30. Presentation may be per parol as well as by Writing 31. What amounts to a Revocation of the King's Presentation 32. Causes of Refusal of the Clerk Presented 33. Certain Law Cases pertinent to this Subject 34. Whether Institution granted after a Caveat entered be void 35. What shall be held a Serving of a Turn and good Plenarty and Incumbency against a Patron in Severalty 36. A Clerk refused by reason of his not being able to speak the Welsh Language 37. What is the best Legal Policy upon every Presentation by Vsurpation 38. One of Two Grantees of an Advowson to whom the other hath released may Present alone and have a Qua. Imp. in his own Name 39. A Clerk refused for Insufficiency by the Bishop may not afterwards be Accepted 1. COllation in its proper signification is the bestowing of a Benefice by a Bishop that hath it in his own proper right gift or patronage distinguish'd from Institution only in this That Institution into a Benefice is at the instance motion or Presentation of the Patron or some other having pro tempore the Patrons Right performed by the Bishop Extra de Instit de Concess Praeben c. But Collation is not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof or when the Bishop or Ordinary hath right to Present for Lapse of the Patron and yet sometimes Collation is and hath been used for Presentation And so Presentation Nomination and Collation are commonly taken for one and the same thing in substance though at times distinguished And whereas it hath been a Question If one hath the Nomination and another the Presentation which of them shall be said to be the very Patron it hath alwaies been taken to be the better opinion that he who hath the Nomination is Patron of the Church And where an Abbot had the Presentation and another the Nomination and the Abbey surrendred to the King he that hath the Nomination shall now have all for the King shall not Present for him that being a thing undecent for the King But as to Collation and Presentation they were in substance one and the same thing as aforesaid But to speak properly Collation is where the Bishop himself doth freely give a Benefice which is of his own Gift by right of Patronage or Lapse This word Collation seems also to be frequently used when the King Presents and hence it is that there is a Writ called Collatione facta uni post mortem alterius c. directed to the Justices of the Common Pleas Commanding them to direct their Writ to a Bishop for the Admitting one Clerk in the place of another Presented by the King which Clerk during the Suit between the King and the Bishops Clerk is departed this life For Judgment once given for the Kings Clerk and he dying before his Admission the King may bestow his Presentation on another This Collation Presentation and Nomination are in effect Synonima being distinguished only in respect rather of Persons than of Things 2. Yet there may be a great difference betwixt Presentation and Collation which gains not the Patronage from the King as appears in the Case of the Queen against the Bishop of York where the Queen brought a Quare Impedit against the said Bishop and one Monk and counted upon a Presentment made by King Hen. 8. in the right of his Dutchy of Lancaster and so conveyed the same to the Queen by Descent The Bishop pleaded That he and his Predecessors have Collated to the said Church c. and Monk pleaded the same Plea upon which there was a Demurrer And it was moved by Beaumont Serjeant That the Plea is not good for a Collation cannot gain any Patronage and cannot be an Usurpation against a Common person much less against the Queen to whom no Lapses shall be ascribâd and although the Queen is seized of this Advowson in the right of her Dutchy yet when the Church becomes void the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist 31. Quando Rex praesentat non in jure Coronae tunc incurrit ei Tempus Hamm. Serj. By these Collations the Queen shall be put out of possession and put to her Writ of Right of Advowson but the same ought to be intended not where the Bishop Collates as Ordinary but where he Collates
not and at what time and when the Church shall be Judged to become void and when not all these appertain to the Kings Temporal Laws And in case it happen that the King Present not where of Right he may in such case the Ordinary may pro tempore depute a fit person to serve the Cure as in like case he may where there is a default or neglect in other Patrons to Present and do not 7. If the Patrons be Joynt-tenants or Tenants in Common of the Patronage and they vary or differ in their Presentations the Ordinary is not in that Case bound to Admir either of their Clerks nor him that is Presented by the Major part And if the Six months expire ere they agree the Ordinary may Present by the Lapse but within the Six months he may not for if so and the Patrons accord they may bring a Quare Impedit against him as a Disturber and remove his Clerk But in case the Patrons have the Patronage by Descent as Coparceners then is the Ordinary obliged to Admit the Clerk of the Eldest Sister who hath the precedency by Law in the Presentation if she so please after which and at the next Avoidance the next Sister shall Present and so in order by turn one Sister after another till all the Sisters or their Heirs have Presented and then the Eldest Sister shall Present again and this is called a Presenting by Turn which holdeth alwaies between Coparceners of an Advowson unless they agree to Present together or in some other manner by way of Composition which if so then the Agreement ought to hold good Yet here note That if after the death of the Common Ancestor the Church happening to be void the eldest Sister together with another of the Sisters Presents and the other Sisters severally and each in her own Name or joyntly and altogether In this case the Ordinary is not obliged to receive any of their Clerks but may suffer the Church to run into the Lapse for there is no obligation on the Ordinary to admit the Clerk of the Eldest Sister but where she Presents in her own Name only And in such case of variance or difference among the Patrons touching the Presentation the Church is not properly said Litigious obliging the Ordinary at his peril to direct a Writ to enquire de jure Patronatus which Writ lieth only where Two or more Present under pretence of several Titles but in this case all the Patrons present under one and the same Title for which reason the Ordinary may if he please suffer it to pass into the Lapse 8. Suppose a Patron presents to a Church void and before the Admission of the Clerk the Patron dies after his Executors before such Admission Present another Clerk Q. Whether the Archdeacon ought to receive the Clerk of the Testator or of the Executors The Opinion of the whole Court was That the Bishop should have Election therein And in case an Agreement be made by way of Composition between divers claiming one Advowson and Enrolled or by Fine that one shall successively after another Present in such an order certain and after one hath Presented he to whom at the next Avoidance the Second Presentation doth belong is disturbed by any that was party to the said Fine or by some other in his stead In such case it is provided That such so disturbed shall not be put to the Quare Impedit but their resort to the Roll or Fine shall be sufficient where if the Concord or Agreement be found the Sheriff shall be commanded That he give knowledge to the Disturber that he shew by such a time certain as fifteen days or three weeks if he can alledge any thing wherefore the party that is disturbed ought not to Present and if he appear not or appearing alledge nothing sufficient in Bar he shall recover his Presentation with Dammages 9. In the Case of Evans and Ascough it was the Opinion of Doderidge That a Bishop hath no more in a Church by Election than a Parson hath by Presentation And that if a man Present to a Church yet any time before Institution he may revoke it and Present another and if in that case the Bishop will Institute the First a Quare Impedit will lie against him But if the Patron present one and he be Admitted by the Ordinary he cannot in that case vary from his Presentation as was also held by Doderidge in Stoke's Case against Styles where he further said That it was out of all question at the Common Law that before Admission by the Ordinary the Lay-Patron may revoke his Presentation because a Presentation is no other than a Commendation which may be by word only And if the Case be that one hath the Nomination another the Presentation the Presentation and Nomination are all one It was then said by Whitlock That in the Canon Law it is allowed to a Lay-man to vary but not to a Spiritual man but at the Common Law it is all one Doderidge and Jones seemed to give the Reason thereof when they said That it may be intended that a Lay-man cannot at first so well judge or is able to discern of the sufficiency of the party Presented but a Spiritual-man may Quaere If after Admission of the Patrons Presentee he doth afterwards again Present another to the Ordinary and the Ordinary Admit Institute and Induct the last Presentee what Remedy for the first So if a Spiritual Person change his Presentation by the consent of the Ordinary what remedy for the First after Induction of the Second 10. To the same purpose with the premisses is that which is Reported in Stoke's Case against Sykes the Case is this viz. A Lay-Patron having the next Avoidance of a Church after the death of one Stokes Father of the Plaintiff then Incumbent of the said Church after the Fathers death presented Stokes's Son whom the Bishop refused for that by the Canon Law Filius Patri non potest in Ecclesia succedere Whereupon the Patron presented Sykes And now Stokes obtains a Dispensation Non obstante the Canon Notwithstanding the Ordinary doth Institute Sykes and causeth him to be Inducted Whereupon Stokes doth Sue Sykes and the Ordinary in the Delegates and now Banks prays a Prohibition and by all the Justices it was granted And Jones said That he had known it to be Thrice so granted in the like Case viz. in the time of Justice Gawdy as also in the time of Justice Coke in the Common Pleas where both Parsons claimed by one Patron But Doderidge there held That the Canon before-mentioned doth not hold in this Church and so said Doderidge was the Opinion of a Learned Civilian So by the Canon Law a man cannot have that Woman in Marriage whom he had in Avowry before yet that Canon doth not hold in our Church Doderidge said that the Civilians hold That a Lay-Patron cannot revoke
he Resign not the King may Present during the life of the Incumbent And that was a grand inconveniency that after so long possession in that manner the Incumbent may be removed by the King c. Vid. the Case of the King against the Archbishop of Canterbury and Thomas Prust Clerk Trin. 4 Car. Hetley's Reports 15. If an Incumbent Resign and the Usurper Present within Six months and is in for Six months no Notice being given to the Patron of the Resignation yet that shall bind him and he shall be put to his Right of Advowson Otherwise if the Ordinary had Collated because the Induction is notorious to the Country and the Patron ought to take notice of it at his peril to prevent the Usurpation of an Estranger 16. There was a Question upon a Demurrer in Law If a Lapse devolves to the Ordinary and within those Six months the Ordinary is Translated to another Bishoprick Whether the King or his Metropolitan shall Present to that Lapse in default that the Patron does not Present Noy Attorney That the Guardian of the Spiritualties shall Present whosoever he be Vid. Dyer 78. Pl. 103. 17. In a Quare Impedit It was Resolved and Agreed by all upon Evidence at Bar That a Resignation to a Proctor does not make the Church void until it be Accepted by the Bishop and acknowledged before him So that a Presentation in the mean time was void 18. A Parochial Church may be a Donative and exempt from the Ordinaries Jurisdiction and the Incumbent may resign to the Patron and not to the Ordinary nor may the Ordinary Visit but the Patron by Commissioners to be appointed by him Co. Lit. 144. Cite Hill 1 Jac. B. R. Rot. 601. between Fairchild and Gaier in Trespass for the Parochial Rectory Donative of St. Burien in Cornwall so Resolved in that Case But in such case of a Parochial Donative a meer Lay-man is not capable thereof but a Clerk in Holy Orders is for although he comes in by way of a Lay-donation and not by Admission and Institution yet his Function is Spiritual As was Resolved in the said Case of St. Burien So that a Donative may pass by the Gift of a Lay-Patron without Institution or Induction 19. In a Quare Impedit the Case was this A. seized of Two parts of an Advowson and B. of the Third part A. presented one who died afterwards he presented again C who is deprived 1 Mar. because he is a Favourer of the Religion of E. 6. B. presented D. who after is deprived and C. restored The Church void by the death of C. B. presents and A. brings a Quare Impedit It was Adjudged that it did not lie And it was Agreed That if Two have Title to present by turns and one presents one who is Admitted and Instituted and afterwards deprived for Crime yet he shall not present again but it shall serve for his Turn because the Church was full till a Sentence of Deprivation came But when the Admission and Institution are meerly void the same shall not serve for a Turn But in this case although the Clerk of B. was Incumbent for a time to all purposes yet when the second Sentence came C. was Incumbent again by force of the first Presentment and then when he was dead B. ought to present at his Turn In another Quare Impedit the Case was this viz. The Bishop of Lincoln Patron and Ordinary Collated to a Benefice in 8 Eliz. The Incumbent took another Benefice without Qualification by which the first was void The Successor Bishop 18 Eliz. presented one E. but non constat whether by Avoidance Death or Resignation E. being in the Bishop was translated or removed to Winchester the Bishop that then was certified that E. did not pay his Tenths upon which the Church was void and the Bishop Collated J. S. to the Church The Question was Whether the Queen might now avoid the Incumbent to have her Presentment which accrued to her upon the avoidance of the first Incumbent who took a second Benefice without Qualification The Justices at the first doubted it but afterwards it was Adjudged for the Queen against the Bishop Pasch 30 Eliz. The Queen and the Bishop of Lincolns Case More ' s Rep. 20. It is out of the Canon Law one of Cardinal Otho's Canons That Ne succedat in Ecclesia Filius Patri the Son may not succeed the Father in the same Church or in case such happen to be so Instituted or Admitted they are forthwith to be deprived thereof by the said Constitution Const Othon Ne succedat in Ecclesia Filius Patri This is indeed according to the Canon Law though with us not practicable by the same Law also the Son is prohibited to succeed the Father immediately in the same Prebendy albeit to have another he is not prohibited but if it be where the number of Prebends be not definite and certain there he is not at all by that Law prohibited Extr. de si Praes c. dilectus yea by that Law the Son may not be a Vicar in that Church where the Father was Rector last Extr. ib. ad Extirpandas c. Michael But this might be omitted for the Question An Filius possit Beneficiari in Ecclesia Paterna is with us grown too obsolete to admit a Negative Solution 21. A Presentation may be to a Deanary to an Hospital and to a Chappel And if a Stranger Present to a Donative and his Clerk be thereupon Instituted and Inducted yet it is meerly void for which reason such Institution and Induction upon such a Presentation shall not make that Presentative which before was Donative But if he that is the true Patron of a Parochial Rectory Donative shall Present to the same and his Clerk be thereupon Admitted and Instituted that now makes it to become Presentative and it shall never afterwards become Donative 22. If a Church become void to which a Bishop hath right to Present in respect of his Temporalties in this case if the Bishop happen to die before he hath presented to that Church void the King shall have the Presentation and not the Bishops Executors Also if during the vacancy of the Archbishoprick of York and the Temporalties being in the Kings hands the Deanary becomes void the King shall Present to that Deanary albeit there be a Composition between the Archbishop and the Chapter that the Chapter shall chuse him for de jure the Patronage thereof belongs to the Archbishop yet the Composition cannot bind the King who comes in paramount as Supream Patron 23. Although it be admitted that where a Common person Incumbent is Created a Bishop there the King shall have the Presentation of the Church for that turn by his Prerogative yet it seems if the King grant to an Incumbent before he is Created Bishop a Dispensation retinere the Church with his Bishoprick and afterwards
Form thereof according to the Canon Law what required of the Clerk in order thereto and his Remedy in case the Ordinary denies him such Institution as he may claim by Law 9. Matters of Institution properly cognizable in the Ecclesiastical Courts yet in certain Cases not exclusively to the Common Law or Temporal Jurisdiction 10. Institution gives the Parson jus ad rem not jus in re 11. Whether Institution without Induction works a Plenaâty also whether it be good being Sealed with another Seal and done out of the proper Diocess The difference between the Common Law and the Canon Law as to a Coveat entered before Institution 12. Whether Suit may be in the Ecclesiastical Court to remove an Incumbent after Induction 13. Whether the First-Fruits be due upon the Institution before Induction 14. A Case at Common Law touching Resignation and whether it may be made Conditionally 15. A Case touching the Rightful Patron 's Presentation after the Induction of another by Vsurpation 16. What Induction is and the Bishop's Order therein 17. Induction is a Temporal not Spiritual Act In what manner it is to be executed 18. A Caveat entered in the Life-time of an Incumbent is void 19. In what Case an Induction made by a Minister not resident within the Archdeaconry may be good 20. Institution to a Minor and Vnder-age is meerly void 21. Whether after Induction the Institution may be questioned in the Ecclesiastical Court 22. Whether Incumbency be triable only at Common Law 23. In what Court the validity of Induction is determinable 1. EXamination is that Trial or Probation which the Bishop or Ordinary makes before his Admission of any person to holy Order or to a Benefice touching the qualification of such persons for the same respectively So that there are Two certain times or seasons especially wherein this Examination is required the one before an Admission to Holy Orders the other before an Admission to a Benefice The former of these is expresly enjoyned by the 35th Canon Ecclesiastical whereby it is required That the Bishop before he Admit any person to Holy Orders shall diligently Examine him in the presence of those Ministers that shall assist him at the Imposition of hands or in case of any lawful Impediment of the Bishop then the said Examination shall be carefully performed by the said Ministers provided they be of the Bishops Cathedral Church if conveniently it may otherwise by at least Three sufficient Preachers of the same Diocess And in case any Bishop or Suffragan shall Admit any to Sacred Orders who is not Examined as is before ordained then shall the Archbishop of the Province having notice thereof and being assisted with one Bishop suspend the said Bishop or Suffragan from making either Deacons or Priests for the space of Two years So also when the Clerk is Presented by the Patron of the Advowson before he be Admitted as Clerk to serve the Cure the Ordinary is to Examine him of his Ability For if upon his Examination he be found unable to serve the same or be Criminous the Ordinary may refuse to Admit and Institute him into the Benefice By the Ancient Cannons the Bishop hath Two months time to enquire and inform himself of the sufficiency and quality of every Clerk Presented to him as appears by the Canon in 1 Jac. cap. 95. But by the said Canon it is Ordained That the said Two months shall be abridged to 28 days only Upon sufficient enquiry and Examination the Ordinary may accept or refuse the Clerk Presented and regularly all such matters as are causes of Deprivation are also causes of Refusal but for a Presentce to have another Benefice is no cause of Refusal for that is at his own peril and possibly the Second Benefice is more worth than the former which only is void in such case 2. If the Bishop doth demand of the Clerk his Letters of Orders and Letters Testimonial of his good behaviour and the Clerk requires time to shew them as the space of a week or the like because he hath them not there with him and the Bishop doth thereupon Refuse him to the Church and Presents another the Bishop in such case hath been adjudged to be a Disturber for the Statute of 13 Eliz. doth not compel the Clerk to shew his Orders nor Letters Testimonial of his good Behaviour And so it was Adjudged Yet by the 39th Canon it is by way of Caution expresly Ordained That no Bishop shall Institute any of a Benefice who hath been Ordained by any other Bishop except he first shew unto him his Letters of Orders and bring him a sufficient Testimony of his former good life and behaviour if the Bishop shall require it 3. Examination of the Clerk is to be done at a convenient time within the Six months for the Ordinary cannot refuse to Examine the Clerk during all the Six months and so suffer a Lapse to incurr to himself for by so doing the Patron should lose his Presentation and the Ordinary take advantage of his own wrong But if the Ordinary when the Clerk comes to be examined Sedet circa curam Pastoralem he is not then obliged to leave the business in hand and presently Examine the Clerk but he may appoint a convenient time and place for the Examining of him This Examination by the Diocesan touching the Conversation and Ability of such as were ordained to Peach the Word of God or Presented to a Benefice is enjoyned by the Provincial Constitutions Lindw de Haereticis cap. 1. 4. A Quare Impedit was brought by B. against the Bishop of Rochester who pleads that he claims nothing but as Ordinary and yet pleads further That the Clerk which the Plaintiff Presented had before contracted with the Plaintiff Simmiacally and therefore because he was Simoniacus he refused and that the Church was then void and so remained void whereupon the Plaintiff had a Writ to the Archbishop of Canterbury who returned that before the coming of this Writ viz. 4. July the Church was Full of one Dr. Grant ex Collatione of the said Bishop of Rochester who had Collated by Lapse and this Return was adjudged Insufficient First it is clear That though the Six months pass yet if the Patron Present the Bishop ought to Admit although it be after the Title devolved unto the Metropolitan And it seems also Reason that he ought to Admit though that the Title by Lapse be accrued to the King for he claims it as Supream Ordinary Vid. Dyer 277. quaere But in this Case the Bishop who is the Defendant is bound by the Judgment and the Writ is notwithstanding the claim of the Bishop that he Admit the Clerk for the Bishop ought to execute the Process of the Court It was urged by Serjeant Henden that there is a Canon in Lindwood That if the Church be vacant when the Writ comes to the Bishop that he is bound to execute
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
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
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
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
Composition of the Profits assigned for the Vicars Maintenance all such things as he ought to have by these words according to the Definition thereof made by the Reverend Father in God John Lord Bishop of London upon Conference with the Civilians viz. c. all Doctors of Law h. e. by Altaragium Tithes of Lamb Wool Colt Calf Piggs Goslins Chicken Butter Cheese Hemp Flax Honey Fruits Herbs and such other small Tithes with Offerings that shall be due within the Parish of West-Haddon The like Case was for Norton in Northamptonshire heard of late years in the said Court and upon the Hearing ordered in like manner as aforesaid Thus all Oblations whether in Money or Bread to such or such an Altar either out of Devotion or Custome made either by the Parishioners or Strangers are esteemed to be offered nomine Altaragii Under which Notion may be comprehended Oblations Obventions and Offerings which in effect seem to be but as one and the same thing and that which may be called meerly Spiritual the Oblations being such things Real or Personal as are offered or dedicated to God and his Church which seem to be included in Obventions the other Profits consisting in the Tithes Predial or Personal as also in the Glebe John âe Aton in his Gloss upon Cardinal Otho's Constitutions describing the Proventus ex Altari says that they are Offerings either in Bread or in Money or consisting in other minute Oblations vulgarly called Altaragium Const Otho cap. Auditu verb. Proventus Gloss ibid. Which word extends it self also to all things pertaining to the Altar and relating to the Ornaments thereof which were by the Canons and Constitutions of King Edgar An. 967. to be Mundissima apprime Concinnata Canon 42. Edgar Reg. è Veterrimo MS. Codice Saxonico Colleg. Corp. Christi Cantabrig But this cannot referr properly to the word Altaragium otherwise than in sensu largo for by the genuine signification thereof is meant only the Obventions Oblations and Profits of the Altar not the Ornaments thereof 2. In Cardinal Otho's daies about 170 years since this Provenue of Altarage was most grosly abused by many of the Clergy insomuch that he made a most severe Canon or Constitution against the Offenders in that kind for in these daies as he observes in the Canon these Miserable Priests for so he there calls them to advance the profits of their Vicarages out of their ravenous Covetousness by the excessive gain of their Altarages would admit none to their Penitential Confessions unless they first deposited some Money in pursuance of a precedent Compact as the Gloss has it by way of a Simoniacal extortion far exceeding the allowed and accustomed Altarages or Oblations of the Altar And therefore first declaring them not only unworthy of all Ecclesiastical Benefices but also of the Kingdom of God did Decree That the Bishops in their respective Diocesses should make a most exact Enquiry touching this horrid abuse and that all such as were sound guilty thereof should be removed from and deprived of the Benefices they possessed and for the future be render'd incapable of all Ecclesiastical Preferments and wholly suspended from their Function for ever Constit Otho Nè aliquid exigatur pro Sacramentis fol. 6. verb. Auditu Notwithstanding which there being then in use and practice another kind of Simoniacal Artifice to advance the excess of Altarages by Letting them and other Ecclesiastical Revenues and Profits of the Church to Farm another Canon or Constitution was then also Decreed inhibiting and forbidding all such Farms of Altarages in any kind for the future Where John de Aton in his Gloss upon that Canon says it was Constituted for the prevention of Simony and there takes the occasion to put the Question Whether it be lawful to allow a Parochial Chaplain for his stipend the Annual Obventions of Altarage in whole or in part the Negative seems says he to be inâerr'd from the Text of that Canon but in his own opinion he is of another judgment because it matters not whether his Salary be paid in Money or any other Ecclesiastical thing and concludes that an Assignment of such Altarages may safely be tolerated and that the Priest to whom Altarages are due may appoint his Proctor to collect the same and being so Collected may lawfully be assigned him for his Stipend And although the Canon forbids the Letting to Farm the Altarages and other profits of the Church yet the Gloss holds that the Temporal Provenues of an Ecclesiastical Jurisdiction may be sold or lett to Farm but not the Spiritual Right of the Jurisdiction it self Ibid. Constit Nâ Dign tradantur ad firmam verb. Ecclesias Gloss ibid. 3. Note upon Evidence to a Jury between Brett and Ward upon the dissolution of a Vicarage in the County of Warnick which was part of the Priory of Dantry where the Pope by his Bull gave to the Vicar Minutas Decimas Altaragium And it was certified by the Doctors That Altaragium will pass to the Vicar Tithe-wool c. and the usage was shewed in Evidence and the Copy of the Popes Bull and the Court would not credit that without seeing the Bull it self And so the Plaintiff was Non-suit and the Jury was discharged Bulla h. e. properly Vesicula aquae superfluens But in this case a more reverend esteem was had of the Popes Bull. Bulla is also taken for the Boss of a Nail or Bridle Hinc Bulla pro Sigillo pro obsignato Diplomate in primis literis Pontificum plumbeo sigillo notatis Has literas Bullam vocant quia plumbea bulla arctentur quemadmodum apud Romanos bulla erat Ornamentum aureum quod jungebat vestes Est enim bulla tumor ornamentum illud hoc Bullae nomen retinuit quamvis in figuram Cordis esset fabricatum ut refert Macro in 1. Satur. quare aliquoties vestis ipsa Bullata Bulla nuncupatur ita literââ Apost Bulla plumbi munitae Bullae nuncupantur Gammar Extra Cum tam Divino 4. W. Libels against G. in the Ecclesiastical Court for Tithes of Wool Wood aâd Apples c. and he shews that he was Vicar there and that the 8 E. 1. there was a Composition That the Parson should have the Tithes of Grain and Hay praeterea the Vicar should have Altaragium And for that that those Tithes did not belong to the Vicar he prayed a Prohibition And Henden objected That the Parishioner ought to set forth his Tithe and not dispute the Title of the Parson or the Vicar but the Vicar ought to come into the Ecclesiastical Court pro interesse suo But notwithstanding that and notwithstanding the Vicar refuses to claim those Tithes and that alwaies within memory they have been paid to the Parson yet a Prohibition was granted And in the end upon the Composition power is reserved to the Ordinary if any doubt or obscurity be in the Composition to expound or determine it and
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
that Case it was said If Willowes grow within the Site of a House it is Waste to fell them yet if they be felled that Tithes shall be paid of them Woad yields a Predial Tithe and regularly to be computed inter Minutas Decimas yet in some Cases may be Great Tithes in places where it is much sowed as in Vdall and Tindall's Case The Case was That in Trespass for taking of two Loads of Woad the Jury found That if they were Minutae Decimae then the Jury found the Defendant guilty if they were not Minutae Decimae then for the Plaintiff It was said for the Plaintiff That without more Circumstances it shall not be intended Minutae Decimae for it may be That a great quantity of Woad may be sown and the greatest part of the Commodity in the Parish may consist in it for Minutae Decimae are but of small consideration in a Parish as Herbs in a Garden and such like and therefore Woad sown in a Field is not Minutae Decimae It was Resolved by the Court That Woad growing in the nature of an Herb the Tithe thereof ought to be accounted Minutae Decimae and belong to the Vicar And the Dean and Chapter of Norwich Case was vouched to prove it That the Tithe of 40 acres of Land sowed with Saffron did belong unto the Vicar and not to the Parson because they were Minutae Decimae Hill 1 Car. C. B. Sir Rich. Vdal and the Vicar of Altons Case Cro. 3. par 20. vid. Hutton 77. the same Case Wood is computed among the Predial Tithes as also among the Great Tithes yet it hath been Resolved That if a Vicar be only endowed with the Small Tithes and hath by reason thereof alwaies had the Tithe Wood that in such case it shall be accounted a Small Tithe otherwise it is to be accounted among the Great Tithes Wood or a great Wood consisting for the most part of Underwoods only some Great Trees here and there sparsim therein the whole Wood is Tithable unless they be specially exempted But if the Wood for the most part consist of Timber-Trees only some small parcel of Underwoods or Bushes in the same no Tithe shall be paid for such Wood the Timber-Trees do in that case priviledge the rest of the Wood Wood converted into Arable shall not be discharged of Tithes as Barren Land within the Statute of 7 E. 6. Trin. 12 Jac. B. R. Case Maschal Price Roll. Rep. The Tenth acre of Wood in a Coppice is a good payment of the Tithe specially if such be the Custome of Tithing Wood in that Countrey otherwise Wood in a Coppice or the like cut and sold the Tithe thereof is to be answered not by the Buyer but the Seller as some conceive which by others is opposed who hold That the Buyer not the Seller of Woods selled to be sold shall answer the Tithe the Reason is because Tithes do follow the Fruits yet the Parson for his Right hath his Remedy against either But Wood of Coppices or Trees that one cuts and spends in his own House-keeping though he spend much is not Tithable unless the Parson can alledge and prove a special Custome to the contrary for generally Wood used for Fewel in House-keeping is not Tithable sed Qu. the Custome it being not so per Legem terrae Nor is there any Tithe to be paid for such Wood as is cut for Hop-poles where Tithe is paid of the Hops But where Wood is grubbed up the Land that thereby is made fit for the Plough shall pay Tithe presently And if the Tithes of Wood after the Inheritance thereof sold be subtracted the Parson may by the Canon Law implead either the Buyer or the Seller at his choice though he can recover but of one but now by the Statute the Seller only unto Treble dammages If there be Parson and Vicar in one Church and the Vicar hath the Tithe of Woods and the Parson the Tithe of the Pasture and Wood be felled for Fencing and enclosing the Pasture the Vicar shall not have Tithe of the Wood Woodlands converted into Arable or Tillage is not discharged of Tithes as Heath Waste or other Barren Grounds within the Statute of 7 Ed. 6. Trin. 12 Jac. B. R. Case Maschall vers Price in fin Roll. Rep. A Prohibition in another Case was granted to stay a Suit for Tithe Wood upon a Surmize That the Wood was spent in his House for Firing and shews that the Custome in the same Parish is That the Owners of any House and Land in the said Parish who pay Tithes to the Parson ought not to pay Tithe of Wood spent for Fewel in their Houses And Issue being upon this Custome it was found for the Defendant It was moved in Arrest of Judgment That although it be found there is no such Custome that yet he ought not to pay Tithe for Wood spent in his house nor for Fencing-stuff for Hedges but per Legem terrae ought to be discharged of them But it was Resolved by the Court That it is not de jure per Legem terrae that any be discharged of them for it is usual in Prohibitions to alledge Customes or by reason of other Lands whereof he pays Tithes that he is discharged of that Tithe but not to alledge that per Legem terrae he is discharged And in this Case the Plaintiff in the Prohibition having alledged a Custome and it being found against him it was Adjndged for the Defendant that a Consultation should be awarded By Custome Tithes may be paid for Wood spent in a mans own House Mich. 14 Jac. B. Watley and Hanberry Agreed And albeit there are some Trees of what age or bigness soever they be are regularly to pay Tithes as Willows Hasels Hollies Maples Birch Alders Thorns c. yet if they are cut for Fencing of Grounds or for Fewel to be spent in the Houses of the Owner within the same Parish no Tithes shall be paid thereof unless it hath been otherwise by Custome Also Wood cut for Burning of Bricks to be used for repair of the Owners Buildings in the same Parish pay no Tithes otherwise if used for Bricks to sell or for making Houses not of necessary habitation so as the Wood in its own nature be Tithable Likewise Tithe shall not be paid of the Roots of such Coppice-Wood as paid Tithe at the cutting thereof if such Roots were soon after the cutting such Wood grubbed up to cleanse the Ground If Woodlands be mixt with Woods partly Tithable partly not Tithable it hath been held That if the Major part be not Tithable it shall priviledge the rest but if the greater part be Tithable then all that is Tithable shall pay Tithes Touching the manner of Tithing of Wood and Trees and how the Tithes thereof are to be paid and delivered the Reader for his better satisfaction
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
he may Lawfully Marry some other Woman and some other Man Marry that Divorced Adulterers Wife In Mat. 19. 9. The words are That whosoever shall put away his Wife save for fornication and shall Marry another committeth Adultery and he that shall Marry her that is put away committeth Adultery Which words says that learned Author in Sect. 22. are favourable to the affirmative that it is Lawful for him in that one excepted Case to Marry again The nature of a Divorce among the Jews was the rescinding of the Conjugal Bands and by one supposition common to Jews and Romans viz. That they who were duly Divorced might Marry again So of the Jewish Divorced Wife Deut. 24. 2. 't is expresly said she may Marry another and of the Man this was his only End of putting away his Wife in that place that he might Marry another Accordingly the Form of Divorce in Misna tit Gittin Behold thou art free or at liberty for any Man and this is the Bill of Divorce between me and thee so that it is free for thee to Marry to any Man thou wilt Idem Sect. 27. yet on the other side says that learned Author it may be argued that although in the Mosaical Law Divorce was the rescinding the Conjugal Bands to which it was consequent as long as the Jewish polity lasted that they who were duly Divorced as in the one Case of Fornication might freely Marry again yet in the acceptation of our Christian Courts Divorce appears not to be any more than the solemn Judicial separation from Conjugal Society as that it seems to be rather the freeing the Husband and Wife from the Obligation to mutual conjugal duties than the utter rescinding and dissolving the Bands For if it were so then that Husband and Wife could never come together again without a new Wedlock which was never heard of in the Church that Adultery the efficient cause of Divorce though a breach of the Conjugal Vow is yet no actual dissâlution of the Conjugal Bands among us Christians seems probable says Doctor Hammond by these two evidences 1. Because Adultery committed by the Husband dissolves not Marriage which yet it equally should if that fault committed and not the Sentence of Divorce rescinded the Conjugal Band c. In this a difference is observable between us and the Jews for in case of Fornication the Jew expected no Sentence of the Consistory but the Man might put her away give her from himself a Bill of Divorce which was never allowed or practised among Christians 2. Because if this were so if Adultery in the Wife dissolved the bands then the Husband that after the Wifes Adultery continued to live with her Conjugally must be concluded to commit Fornication with her the validity of the bands being it and nothing else which makes Conjugal Society Lawful Accordingly hath the Opinion of the Church been anciently as in Can. Apost 48. If any Laick put away his Wife and Marry another or Marry a Woman which hath been put away by another let him be Excommunicate So likewise at the Council of Arles An. 314. Can. 10. De his qui Conjuges suas in adulterio deprehendunt iidem sunt Adolescentes Fideles prohibentur nubere placuit ut in quantum possit concilium iis detur nè viventibus uxoribus suis licet Adulteris alias accipiant Likewise in the Milevitan Council An. 402. at which St. Augustine was present it is decreed that secundum Evangelicam Apostolicam Doctrinam neque Dimissus ab uxore neq Dimissa à Marito alteri conjungantur sed ita maneant aut sibimet reconcilientur So also in the Codex Can. Eccl. African Can. 102. ãâã ãâã ãâã ãâã ãâã That they that are Divorced from Husbands or Wives should remain unmarried And what hath thus been defined by these Canons is evidently received into the Ecclesiastical constitutions of this Church which therefore hath decreed that when Divorces are pronounced Monitio prohibitio fiat ut à partibus ab invicem segregatis caste vivatur nec ad alias Nuptias alterutra vivente convoletur Constit Eccl. An. 1597. upon these Arguments pro con Doctor Hammond in the forecited place doth conceive that the Resolution may be made by these three propositions 1. That by the force of Christs words in all the Evangelists he that Marries again after any kind of Divorce but that one for Fornication doth commit an Vnchristian sin 2. That by force of the Arguments first produced for the interpreting Mark and Luke by Mat. 19. 5. vid. Doctor Hammond of Divorces fol. 452 453. it may be probably concluded that in that one case of Divorce for Fornication the Marriage of the Innocent party shall not be Adulterous 3. That although this be granted yet the words of St. Mark and Luke especially the words of St. Paul 1 Cor. 7. 39. do give such prejudices against Marriages after Divorce indefinitely that the ancient Canons of the Church and the Constitutions of our English reformation have thought fit not to permit such liberty in any kind and therefore that this may be the better observed the decree of separation shall not be pronounced till they that demand it shall give sufficient security that they will do nothing against the Admonition and Prohibition for our Constitution adds Denique quo illud firmius observetur sententia separationis non antea pronunciabitur quam qui eam postulaverint Cautionem Fidejussoriam sufficientem interposuerint se contra monitionem prohibitionem nihil commissuros which if not observed by the Judge he is punishable and the Sentence of Divorce for such defect declared void Constit Eccl. an 1597. Innocent the first Bishop of Rome saith Qui interveniente repudio alii se Matrimonio copularunt in utraque parte Adulteros esse manifestum est c. But the said Judicious Author conceives that of this and the like Testimonies it may be observed that most of them belong not to these Divorces which are in case of Fornication but proportionably to Christ's words in St. Mark to those which according to the Jewish or Imperial Laws were allowed in other Cases than what either Christ or the Primogenial institution of Marriage had allowed of And further saith that it is evident and confessed by all Christians that of These that is the Marriages after such Divorces by the Jewish and Imperial Laws are Adulterous but not so of those other Marriages of the innocent parties after those other Divorces in that one Case of Adultery Yea and some Canons have been made with this Temperament expresly except in the case of Fornication so in the second Canon of the Council of Vannes eos qui relictis uxorihus suis sicut in Evangelio dicitur excepta causa Fornicationis sine Adulterii probatione alias duxerint statuimus c. They that have left their own Wives as it is said in the Gospel except for cause of Fornication 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
may be discerned Whether the Pope may be Simoniacal Q. Whether it be Simony to give money for the Sacrament upon a Death-Bed Whether it be Simony in the Ordinaries or their Officials to take money for Letters of Ordination under Seal Whether it be Simony in Ecclesiasticks to take money for Sermons or Theological Doctrines Whether it be Simony to resign a Benefice reserving a Pension out of it Whether it be Simony to resign or bestow a benefices upon Trust or Confidence With diverse other such Questions in the Canon Law relating to this Subject the Solutions whereof are not of any moment to us who are out of the Pope's Diocess CHAP. XL. Of Blasphemy and Heresie 1. What Blasphemy is and whence so called 2. The several punishments inflicted on Blasphemers 3. How may ways Blasphemy may be 4. What Heresie is a Conjectural derivation of that word Heresie it is Threefold 5. What shall he accounted Heresie what the Lollards of old were and why so called 6. In whom the Jurisdiction of Heresie properly resides 7. A Heretick convicted and so persisting whether according to Law combustable The reason of that severe Law Heresie is Lepra animae 8. An Alphabetical black Catalogue of Hereticks their Errors Heresies and Blasphemies and the times wherein they pester'd the World 9. A Catalogue of Jewish Hereticks but not in any Alphabetical manner as the former 1. BLASPHEMIA ãâã ãâã ãâã ãâã ãâã quod laedat famam ãâã ãâã ãâã ãâã ãâã is as it were ãâã ãâã ãâã ãâã ãâã to hurt anothers same or reputation Suidas interpreteth ãâã ãâã ãâã ãâã ãâã one who injureth God with contumelious words which is when men detract from God the honour due unto him or attribute any evil to him Blasphemare est tacite vel expresse verbo vel scripto contra deum aliquid contumeliosum dicere Navar. cap. 12. nu 81. Blasphemia est injuriosa in deum locutio vel contumelia in deum verbo irrogata Less lib. 2. de Blasph This is cognizable in the Ecclesiastical Jurisdiction and by the 109. Canon of the Ecclesiastical Constitutions of the Church of England is among other notorious Crimes to be certified into Ecclesiastical Courts by way of presentment in order to punishment according to Law 2. This Crime of Blasphemy was so odious to the Emperor Justinian that he ordained that the Blasphemer should undergo ultimum supplicium be punished by death for he made it capital Auth. ut non Luxur Coll. 7. By the Ecclesiastical Laws of Keneth King of Scots An. 840. It is provided that he that Blasphemeth shall have his Tongue cut out Blasphemy is speaking Treason against the Heavenly Majesty the belching out of exercrable words against God whereby the Deity is reproached Baldus says that Blasphemy is a kind of Heresie Bald. in L. Qui accusationem C. Qui Accus non posse for which a Lay-man is Anathematized by the Church of God and a Clerk deposed from all Ecclesiastical Orders Can. si quis per capillum 22. q. 1. The Canon Law seems not severe enough in the punishment of this Crime probably for that they of the Roman Church do hold that there is a Blasphemy against Saints and Blasphemia Dei vel sanctorum hath but one and the same punishment with them and that is a solemn and publick penance if the Blasphemy were publickly committed Extra de Maledict c. statuimus And that the World may know how they abominate this sin of Blasphemy they put the Question and demand whether any Priest inferiour to a Bishop can absolve a man from this sin for answer they distinguish and say that if the Blasphemy be publick and notorious it cannot be absolved but by a Bishop but if it were only private and occult non in platea nec in camera multis audientibus then every Priest may absolve it Ant. de pae re si Episcopus lib. 6. Steph. de Gaeta Repet in c. ad Limina 30. q. 1. nu 139. Aquinas reckons it among the Mortal sins 3. Lindwood in his Provincials says that that is Blasphemy quae dicitur irreligiosa reprehensio detractio vel vituperatio but says he to speak properly and strictly Blasphemare est Deo injuriam irrogare which may be done three several ways 1 Aliquid attribuendo quod deo non convenit 2. Ab ea removendo quod deo convenit 3. Creaturae attribuendo illud quod est proprium deo Lindw de Offic. Archipr c. 1. verb. Blasphemia In the Primitive times this sin was punished by a delivering the Offender over unto Satan which was an Ecclesiastical censure by the Greater Excommunication whereby the Offender became unto others as an Heathen and a Publican Mat. 18. 17. and whereby he is dissiranchised of all the Priviledges of the Church 4. Touching Heresie there are various conceptions as to the derivation of that word some are of opinion that the word comes from Error and rectus and that from thence comes Haereticus that is Errans à Recto sive Rectitudine Fidei Catholicae l. 2. in sin C. de Haeretic Others will have the word Heresis to be from heriscor that is divido and thence Heresie to be Divisio ab unitate Fidei Azo Sum. C. eod tit Others will have it to be from haereo Error thence Haeresis quasi adhaesio Erroris and Haereticus quasi adhaerens Errori for Error of it self doth not make an Heretick but adhering to an Error doth Lindw de Haeret. c. 1. And others there are who do conceive that the word Haeresis dicitur ab Electione because an Heretick doth chuse to himself that Opinion which he thinks is best for himself And he that inclines to this Opinion seems to be least in an Error for Haeresis is from the Greek ãâã ãâã ãâã ãâã ãâã Optio vel electio secta ab ãâã ãâã ãâã ãâã ãâã Eligo Heresie is an Opinion repugnant to the orthodox Doctrine of the Christian Faith obstinately maintain'd and persisted in by such as profess the Name of Christ that Heresie which is commonly called Haeresis univorsa or Heresie in sensu largo is threefold and doth consist either in a mans heart or in his mouth or in his works Under the first of these are comprized all such as are Christians only by Name but not so in truth and in deed under the second are comprehended all vain Swearers Covenant-breakers and indevout approachers to God in his Worship under the third are contained all Hypocrites whose counterfeit devotion without any sincerity in the heart consists only in the simulation of an external work all these are by Lindwood understood in a large sense as Hereticks Lindw de Offic. Archipr c. 1 glos in ver Haeresis But these are not the Hereticks here meant or intended nor indeed are they Hereticks in any proper sense whereby we commonly understand such as Hereticks who maintain and persist in any Opinion contrary to the True Orthodox
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
Church-gemote Int. Leges H. 1. c. 8. The Convocation is under the power and Authority of the King 21 Ed. 4. 45. b. Assembled only by the Kings Writ 13 Ed. 3. Rot. Parl. M. 1. vid. Stat. 25 H. 8. c. 19. The King having directed his Writ therein assigning the time and place to each of the Archbishops to the effect aforesaid the Archbishop of Canterbury doth thereupon direct his Letters to the Bishop of London as his Dean Lindw Provin Sec. 1. de Poenis ver Tanquam in Gloss First Citing himself peremptorily then willing him to Cite in like manner all the Bishops Deans Archdeacons Cathedral and Collegiate Churches and generally all the Clergy of his Province to the Place at the day in the said Writ prefixed withal directing that one Proctor for every Cathedral or Collegiate Church and two for the other Clergy of each Diocess may suffice In pursuance whereof the Bishop of London directs his Letters accordingly willing them to certifie the Archbishop the Names of all such as shall be so Monished by them in a Schedule annexed to their Letters Certificatory whereupon the Cathedral and Collegiate Churches and the other Churches having Elected their Proctors it is certified to the Bishop who makes due Returns thereof which method is likewise observed in the other Province of York It is said That these Proctors anciently had Place and Vote in the Lower House of Parliament a good expedient for the maintenance and preservation of the Liberties of the Church The Prolocutor of the Lower House of Convocation is immediately at the first Assembly by the motion of the Bishops chosen by that Lower House and presented to the Bishops as their Prolocutor by whom they intend to deliver their Resolutions to the higher House and to have their own House specially ordered and governed His Office is to cause the Clerk to call the Names of the Members of that House as oft as he shall see cause likewise to see all things propounded to be read by him to gather the Suffrages or Votes and the like Trin. 8 Jac. It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1 That a Convocation cannot Assemble without the Assent of the King 2 That after their Assembling they cannot conferr to constitute any Canons without License del Roy. 3 When upon Conference they conclude any Canons yet they cannot execute any of them without the Royal Assent 4 They cannot execute any after Royal Assent but with these Limitations viz. 1 That they be not against the Kings Prerogative 2 Nor against Statute Law 3 Nor against the Common Law 4 Nor against the Customes of the Realm All which appears by 25 H. 8. c. 19. 19. Ed. 3. Title Quare non Admisit 7. 10. H. 7. 17. Merton cap. 9. By 2 H. 6. 13. a Convocation may make Constitutions to bind the Spiritualty because they all in person or by Representation are present but not the Temporalty Q. And 21 Ed. 4. 47. the Convocation is Spiritual and so are all their Constitutions Vid. The Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. By which it appears that they can do nothing against the Law of the Land or the Kings Prerogative 5. The word Convocation and the word Synod are rather words of two Languages than things of two significations for although they have different derivations the former from the Latin the other from the Greek yet in effect they both center in the same thing Convocation à Convocando because they are called together by the Kings Writ It is of very great Antiquity according to Sir Edward Coke who mentions out of Mr. Bede and other Authors and ancient Records such as were nigh a thousand years since and more expresly of one great Synod held by Austins Assembling the Britain Bishops in Council An. 686. And affirms That the Clergy was never Assembled or called together at a Convocation but by the Kings Writ And in the year 727. there was a Convocation of the Clergy called Magna Servorum Dei frequentia It was by the assistance and authority of Ethelbert the first Christian King of Kent that Austin called the aforesaid Assembly of the British Bishops and Doctors that had retained the Doctrine of the Gospel to be held in the borders of the Victians and West-Saxons about Southampton as supposed to which resorted as Mr. Bede says Seven Bishops and many other Learned Divines but this Synod or Convocation suddenly brake up without any thing done or resolved This Assembly was conven'd for determining the time for the Celebration of Easter touching which the Controversie continuing no less than 90 years after was at last concluded at another Convocation purposely called at Whitby by the Authority of Oswy King of Northumberland and whereof the Reverend Cedda newly Consecrated Bishop was Prolocutor and King Oswy himself present at the Assembly Likewise about the year 1172. at Cassils in Ireland a Convocation was held by Authority of King H. 2. soon after he had Conquered that Island which Convocation was for the Reformation of the Irish Church where amongst many other Constitutions it was Decreed That all the Church-Lands and all their Possessions should be altogether free from the Exaction of Secular men and that from thenceforth all Divine things should be handled in every part of Ireland in such sort as the Church of England handleth them Likewise about the year 1175. at London a Synod or Convocation was held at which King H. 2. was present where among other Canons and Constitutions it was both by Authority of the King and Synod decreed That every Patron taking a Reward for any Presentation should for ever lose the Patronage thereof Which together with other Canons then made for the better government of the Church of England were Published by Richard Archbishop of Canterbury with the Kings Assent Likewise a Provincial Synod was held at Oxford by Stephen Langton Archbishop of Canterbury under King H. 3. about the year 1222. for Reformation of the Clergy with many others in subordination to the Laws of the Land One special Priviledge of the Convocation appears by 8 H. 6. cap. 1. All the Clergy from henceforth to be called to the Convocation by the Kings Writ and their Servants and Familiars shall for ever hereafter fully use and enjoy such liberty and Immunity in coming tarrying and returning as the Great men and Commonalty of the Realm of England called or to be called to the Kings Parliament have used or ought to have or enjoy 8 H. 6. In Parliamento Statutum est ut Praelati atque Clerici cârumque Famulatus cum ad Synodos accesserint iisdem Privilegiis ac
the Semi-Arrians prevail and determine That the Form of Faith composed at the Dedication at Antioch should be retained and subscribed unto but they ejected the dissenting Acatians or Arrians from their places At Constantinople where the Acatians remained after the Council at Seleucia were Assembled by them about 50 Bishops out of Bythinia and other adjacent parts In this Synod they confirmed the Sum of Faith read in the Council of Ariminum At Antioch in the 25 th year of Constantius his Reign another Council was Convened with design or ordering matters so that for the time to come no man should call the Son of God Consubstantial with the Father nor yet of a different substance from the Father but neither in this Council could the Arrians perfect their intended purpose of inventing a new Sum of Faith At Laodicea not that Laodicea nigh Antioch in Syria but at Laodicea the Metropolis of Phyrgia and one of the Seven Churches of Asia to which John in his Banishment wrote from Patmos At this Laedicea a Synod was assembled about the year 368. wherein nothing was determined concerning matters of Faith only the Worshipping of Angels was damned as an horrible Idolatry and a forsaking of Christ also the Books of the Canonical Scriptures were particularly set forth wherein no mention was made of the Books of the Machabees of Ecclesiasticus or other Apocryphal Books In Illyricum about the year 370 under the Emperours Valentinian and Valens not yet infected with the Arrian Heresie was held a Council wherein the Nicene Faith had confirmation and allowance At Lampsacum nigh the Hellespont under the Emperour Valens was a Synod of Macedonian Hereticks who ratified the Council of Seleucia and damned that of Constantinople by the Acatians At Rome under the Emperour Valentinian in the West Damasus Bishop of Rome Convened a Council wherein was confirmed the Nicene Faith At Constantinople in the year 383 under Theodosius the Emperour was a General Council held consisting of 150 Bishops whereof 36 were infected with the Macedonian Heresie which blasphemously held the Holy Ghost to be a Creature a Minister and Servant not Consubstantial with the Father and the Son From this Council the said Hereticks having withdrawn themselves they which remained in Council damned the Heresie of Macedonius and confirmed the Nicene Faith with ampliation of that part of the Symbol which concerned the Holy Ghost in this manner viz. I believe in the Holy Spirit our Lord Giver of life who proceedeth from the Father and with the Father and the Son is to be worshipped and glorified This Council was held under Gratian and Theodosius the Great and Damasus They condemned and discharged Macedonius Bishop of Constantinople for his perfidious opposing the Deity of the Holy Ghost together with Maximus Cynicus by reason of his Doctrine against Discipline The Emperour null'd all Confessions except that of those who acknowledged Christ Coessential with the Father which our present Liturgy retains under the name of the Nicene Creed It is thought that Gregory Nazianzen compiled it according to the sense of the Synod At Constantinople under Theodosius another Council was held whence a Synodick Letter was sent to the Bishops then Conven'd at Rome declaring the troubles they sustained by Hereticks and as to matters of Discipline recommended unto them the Canons of the Council of Nice At Constantinople in the Fifth year of Theodosius his Reign a great National Council was again Conven'd wherein the Hereticks were divided among themselves touching what Credit they should give in matters of Faith to the Fathers that preceded their time whereupon that good Emperour rent in pieces the Sums of the Arrian Eunomian and Macedonian Faith and Ordained the Homousian Faith only to take place At Carthage the Second Council was assembled under Theodosius nigh the time of the foresaid General Council held at Constantinople wherein the Nicene Faith was confirmed abstinence from Matrimonial Society with Infidels and Hereticks recommended to Ecclesiastical persons At Nice there was another Council An. 181. under Constantine which wholly restored the Images and Statues of Irene together with the Reliques formerly broken in pieces by Leo Isaurus his Grandfather and Constantine Copronymus his Great Grandfather the business being chiefly promoted by Gregory the Second and the Third together with Adrian the First and Tarasius Patriarch of Constantinople There met at this Council which is one of the Greek or Eastern Oecumenical Councils 350 Bishops who with the said Tarasius President of the said Council by 22 Canons condemned Image-breakers for Hereticks Bellarmine and Baronius imagine that this Synod was condemned by the Fathers at the Council of Franckfort under Charles the Great which yet is denied by Binnius Surius and others according to Longus pag. 632. At Carthage a Third Council was Assembled in the year 399 at which Augustine Bishop of Hippo was present wherein it was inter alia Ordained That the Bishop of Rome should be called the Bishop of the First Seat but not the High Priest or the Prince of Priests Likewise That nothing except the holy Canonical Scriptures should be read in Churches under the notion of Holy Books At Carthage a Fourth National Council was held under the Reign of Honorius about the year 401. consisting of 214 Bishops at which Augustine Bishop of Hippo was also present and wherein were nigh as many Canons made as were Bishops assembled wherein among other things it was Ordained That a Bishop should admit no man to a Spiritual Office without Advice of the Clergy nor pronounce any Sentence without such Advice That Refusers to pay unto the Church the Oblations of persons Deceased should be Excommunicated Whereby it appears That Oblationes Defunctorum were not Soul-Masses said for the Dead but Charity by way of Testamental Legacies At Cyprus under the Reigns of Arcadius and Honorius was Assembled a Council by Epiphanius And at Alexandria by Theophilus under pretence of damning the Books of Origen Also at Constantinople by the malice of Eudoxia the Wife of Arcadius the Emperour to depose John Chrysostome Bishop of Constantinople At Carthage about the year 419. a Fifth Council was held wherein the Opinions of Pelagius and Coelestius were damned as Heretical and whereby it was Declared That the Adoration of Reliques was at this time the Custome of Ethnicks and Appointed That Supplication should be made to the Emperours That such Reliques as were found in Images Groves and Trees or elsewhere should be abolished At Toledo in Spain under the Reigns of Arcadius and Honorius was a Council assembled for Confirmation of the Nicene Council and refutation of some Errors At Melevitum in Numidia was Assembled under the Reign of Arcadius a Council whereof St. Augustine was President which was Assembled chiefly to finish the work begun at the Fifth Council of Carthage in
of Pope Julius the Third An. 1551. which had only Three Sessions by reason of Wars happening in Germany At this Second Meeting the French King protested against this Council The Third Meeting whereof was Nine years after the Second it being appointed by Pope Pius the Fourth there having been in this interval since the Second Meeting when Julius the Third was Pope two other Popes viz. Marcellus and Paulus the Fourth At this Third and last Meeting there were Nine Sessions the Last whereof began the Third of December An. 1563. The chief Points treated of at this Council were concerning the Scriptures Original Sin Justification the Sacraments in General Baptism the removing of the Council the Eucharist Repentance Extream Unction Communion of Lay-persons under one kind the Sacrifice of Masse the Sacrament of Order Matrimony Purgatory Worshipping of Reliques Invocation of Saints Worshipping of Images Indulgencies the choice of Meats Fastings and Festivals The History of this Council of Trent is extant Of National Councils there have been many more than what are before mentioned as here in Britain and in Italy Spain France Germany the Eastern and African In Italy it is said that there are to be found 115 such Synods as it were National which go under the Name of Roman Councils But such as are of the most Remark in each of these Countreys and the principal things they determined you may find a touch of and no more in the Learned Bishop Prideaux his Synopsis of Councils in the Eighth Chapter Edit 5. Oxon. 1672. CHAP. XLII Of Excommunication 1. What Excommunication is It is Twofold 2. By what Appellations the Greater and Lesser Excommunication are known and distinguished their respective derivations and significations and the nature of each 3. Ecclesiastical Censures in the general may be Threefold 4. What the Law intends by Excommunication ipso facto 5. What the Excommunicate is not debarr'd of by Law 6. Legal Requisites to the due pronunciation of the Sentence of Excommunication 7. What course the Law takes with an Excommunicate after Forty days so perisisting obstinate 8. The several Causes of Excommunication ipso facto enumerated by Lindwood 9. The Causes of Excommunication ipso facto by the Canons now in force in the Church of England 10. The several Writs at Law touching persons Excommunicate and the Causes to be contained in a Significavit whereon the Excommunication proceeded 11. What the Writs de Excommunicato Deliberando also de Excommunicato Recipiendo do signifie in Law 12. A sufficient and lawful Addition to be in the Significavit and in the Excom Capiend Vid. Sect. 10. 13. Several Statutes touching Persons Excommunicated 14. Excommunication for striking in the Church 15. Whether a Bishop hath Jurisdiction or may Cite a man out of his Diocese 16. What are the Requisites of a Certificate of Excommunication for stay of Actions and how it ought to be qualified 17. A Significavit of Excommunication for not Answering Articles not shewing what they were not good 18. By whom an Excommunication may be Certified and how 19. In what case the Significavit of an Excommunication ought to express one of the Causes mentioned in the Statute 20. Whether a General Pardon doth discharge an Excommunication for Contempt precedent to the Pardon or shall discharge the Costs of Court thereon 21. A man taken upon an Excom Cap. and discharged because the Significavit did not express the party to be Commorant within the Bishops Diocess at the time of the Excommunicat 22. Where a man is twice Excommunicated whether an Absolution for the latter shall purge the first Excommunication 23. Whether a Prohibition lies to the Ecclesiastical Court upon Costs there given not in an Action at the Suit of the party but upon an Information there exhibited 24. What Remedy in Law for a party wrong fully Excommunicated and so remaining Forty daies without suing a Prohibition 25. Whether a Person taken by a Capias de Excom Capiend be Bailable or not And whether the Bishop may take Bond of the Excommunicate to perform Submission for their Absolution 1. EXcommunication commonly termed in the Common Law in the Law-French thereof Excommengement is a Censure of the Church pronounced and inflicted by the Canon or some Ecclesiastical Judge lawfully Constituted whereby the party against whom it is so pronounced is pro tempore deprived of the lawful participation and Communion of the Sacraments And is also sometimes as to Offenders a deprivation of their Communion and sequestration of their persons from the Converse and Society of the Faithful And therefore it is distinguish'd into the Greater and Lesser Excommunication the Greater comprizing as well the latter as the former part of the abovesaid definition or description the Lesser comprizing only the former part thereof de Except c. a nobis Lindw de Cohab. Cler. gl in verb. Sacramenta Excommunicatio quasi extra Communionem For Excommunication is Extra Communionem Ecclesiae separatio vel Censura Ecclesiastica excludens aliquem à Communione Fidelium This Ecclesiastical Censure when it is Just is not by any means to be despised or opposed for Christ himself is the Author thereof Anciently among the Hebrews such persons as were Excommunicated were termed Aposynagogi as being quasi Synagoga exacti and to be shun'd or avoided of all men until they repented That of our Saviour in Matth. 18. 17. Let him be unto thee as an Heathen man and a Publican seems to referr to some such Excommunication the power whereof by way of Judicature being then in the Jewish Sanhedrim or Colledge of Elders 2. This Ecclesiastical Censure when limited or restrained only to the Lesser Excommunication the Theologists will have to be understood by the Greek word Anathema Accursed or Separated and when it extends to the Greater Excommunication then to be understood by the Syriack word Maran-atha or Our Lord cometh Anathema Maran atha Anathema Let him be Accursed quasi Devoted to the Devil and separated from Christ and his Churches Communion Maran-atha Some take this for a Syriack word Others not so well satisfied with that Judgment will have it to be a Chaldee word yet used in the Hebrew and familiarly known among the Greeks Maran-atha viz. Our Lord cometh for Maran is our Lord and atha cometh or rather three words more properly viz. Mara-na-atha Our Lord cometh Being a word used in the greatest Excommunication among the Christians intimating or implying That they summoned the person Excommunicated before the dreadful Tribunal at the last coming of the Son of God or that such as were under this Censure of the Church were given up and reserved to the Lords coming to be judged by him and mean while without Repentance and Absolution are to expect nothing but the Terrible coming of Christ to take Vengeance of them To which that Prophesie of Enoch seems to allude Behold the Lord cometh with Ten thousands of his Saints to execute Judgment upon all
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
being made Ministers and do not reform after a months suspension Also by all such persons as refuse the Sacraments at the hands of Unpreaching Ministers after a months obstinacy being first suspended Also by all such Ministers as without their Ordinaries License under his Hand and Seal appoint or keep any Solemn Fasts either publickly or in private Houses having been formerly suspended for the same fault and finally by all Ministers who hold any private Conventicles to Consult on any thing tending to the impeaching or depraving of the Doctrine of the Church of England or of the Book of Common Prayer or of any part of the Government and Discipline now established in the Church of England which by the Seventy third Canon is Excommunication ipso facto 10. Touching persons thus Excommunicated persisting Forty daies in their obstinacy there are Three several Writs at the Law issuing from the Secular power viz. Excommunicato Capiendo Excommunicato Deliberando Excommunicato Recipiendo The Excommunicato Capiendo is a Writ issuing out of Chancery directed to the Sheriff for the apprehending and imprisoning of him who hath obstinately stood Excommunicated Forty daies for the Contempt to the Ecclesiastical Laws of such not in the interim obtaining their Absolution being by the Ordinary certified or signified into Chancery the said Writ thence issues for the apprehending and imprisoning them without Bail or Mainprize until they Conform Which Writ as by the Statute of 5 Eliz c. 23. is to be awarded out of the high Court of Chancery so it is to issue thence only in Term time and Returnable in the Kings Bench the Term next after the Teste thereof and to contain at least Twenty daies between the Teste and the Return thereof And in case the Offender against whom such Writ shall be awarded shall not therein have a sufficient and lawful Addition according to the form of the Statute of 1 H. 5. Or if in the Significavit it be not contained That the Excommunication doth proceed upon some cause of Contempt or some Original matter of Heresie or refusing to have their Children Baptized or to receive the Holy Communion as it is now used in the Church of England or to come to divine Service now commonly used in the said Church or Error in matters of Religion or Doctrine now received and allowed in the said Church Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry That then all pains and Forfeitures limited against such persons Excommunicate by the said Statute of 5 Eliz. 23. by reason of such Writ of Excom Capiend wanting sufficient Addition or of such Significavit wanting all the Causes aforesaid are void in Law 11. The Excommunicato Deliberando is a Writ to the Under-Sheriff for the releasing and delivery of the Excommunicate person out of Prison upon Certificate from the Ordinary into the Chancery of his Submission Satisfaction or conformity to the Ecclesiastical Jurisdiction And the Excommunicato Recipiendo is a Writ whereby Excommunicated persons who by reason of their Obstinacy having been committed to Prison and thence unduly delivered before they had given sufficient Caution or Security to obey the Authority of the Church are to be sought for and committed again to Prison This Sentence of Excommunication by the 65 th Canon pronounced against any and not absolved within Three months next after is every Sixth month ensuing as well in the Parish Church as in the Cathedral of the Diocess wherein they remain by the Minister openly in time of Divine Service upon some Sunday to be denounced and declared Excommunicate and where by the 68 th Canon Ministers are enjoyned not to Refuse to Bury it is with an exception to such persons Deceased as were denounced Excommunicated Majori Excommunicatione for some grievous and notorious Crime and of whose repentance no man is able to testifie 12. A Sentence was given in the Chancellors Court at Oxford at the Suit of B. against H. and thereupon H. was Excommunicated and taken in London upon the Writ of Excom Capiendo And it came into the Kings Bench where he pleaded That there was no Addition in the Significavit according to the Statute of 5 Eliz. and thereupon prayed to be discharged And the Opinion of the Court was That by the Statute of 5 Eliz. the Penalties mentioned in the said Statute are discharged but not the Imprisonment nor the Excommunication 13. By the Statute of 9 Ed. 2. 12. the Writ de Excom Capiendo may be awarded to take a Clerk Excommunicate for Contumacy after Forty daies And by the Statute of 9 Ed. 2. 7. the Kings Letters may not be sent to an Ordinary to Absolve an Excommunicate but where the Kings Liberty is prejudiced By the Statute of 5 6 Ed. 6. cap. 4. striking or laying of violent hands upon any person in a Church or Church-yard is Excommunication And by the Statute of 2 Ed. 6. 13. it is Excommunication to disobey the Sentence of an Ecclesiastical Judge in Causes of Tithes By the Statute of 3 Jac. 4. the Sheriff may apprehend a Popish Recusant standing Excommunicate and by the Statute of 3 Jac. 5. a Popish Recusant convicted shall stand as a person Excommunicate And by the Statute of 3 Ed. 1. 15. he that is Excommunicated shall be debarred of Mainprize 14. V. against E. in the Ecclesiastical Court where the Suit was for Striking in the Church which by the Second Branch of the Statute of 5 Ed. 6. cap. 4. is Excommunication ipso facto By which he surmized him incidisse in poenam Excommunicationis And being granted if c. And Ashley shewed cause why it should not issue viz. There ought to be a Declaration in the Ecclesiastical Court of the Excommunication before any may prohibit him the Church Richardson said That the Proceedings are not contrary to the Statute but stood with the Statute And it was said by Yelverton It seems there ought to be a Declaration in the Ecclesiastical Court But the difference is where it is Officium Judicis or Ad instantiam paris they will give Costs which ought not to be Hutton and Richardson If the party will not prosecute it none will take notice of it and they proceed to give Costs then a Prohibition may be granted And if he be a Minister he ought to be suspended for an offence against the Statute And it ought to be first declared and so to Excommunication and that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted 15. B. was sued in the Ecclesiastical Court in a cause of Defamation in another Diocess than that wherein he lived and being Cited was for Non-appearance Excommunicated and upon Significavit the Writ de Excommunicato Capiendo was awarded Serjeant Finch Recorder prayed a Supersedeas for two Reasons 1. Upon the Statute of 23 H. 8. because he was Sued out of the
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
Incumbent the Incumbent is so removed by the Judgement that the recoverer may present to the Church without other removal of the Incumbent who yet continues Incumbent de facto until there be a Presentation made by the recoverer And after such recovery in a Quare Impedit a Stranger to the recovery cannot present to the Church for notwithstanding the recovery the Incumbent continues Incumbent de facto as to all Strangers to the recovery 20. A Quare Impedit lies of a Donative and the Writ shall be Quod permittat ipsum presentare ad Ecclesiam c. and set forth the special matter in his Declaration And the Grantee of a next avoidance may have a Quare Impedit against the Patron who granted the same 21. If the Husband who hath an Advowson in right of his Wife be disturbed in his presentation thereto and dies the Wife shall have a Quare Impedit on that disturbance Also a Chapter may have it against the Dean for their several possessions It lies also of a free Chappel which a man hath by Patent from the King if the Sheriff refuse to put him into possession thereof A presentation by a Bishop as Patron is sufficient for the King to maintain a Quare Impedit to the Church when the Temporalties come into the Kings hand by reason of vacancy of the Bishoprick 22. The Writ of Right of Advowson lieth properly for him who claims to have the Advowson to him and his Heirs in Fee-simple This Writ lies of an appropriation He that procures this Writ ought to shew a possession in himself or Ancestors Admission and Institution of a Clerk without Induction is not sufficient to maintain this Writ 23. When a man presents his Clerk to the Bishop within the Six months and also another presents his Clerk in that case the Church is Litigious and the Bishop may issue the Writ De jure Patronatus to enquire to whom the right of Patronage belongs This Writ may also issue out of Chancery to the Ordinary And the Ordinary is to make Inquisition thereon Some question is at whose costs this Writ shall be sued whether at the Bishops or at the parties It hath been said that it shall be sued at the costs of the Ordinary because it is for his own discharge and for his ease But it seems otherwise for that the Ordinary is not oblig'd to award a Commission to enquire De Jure Patronatus ex Officio but at the desire of the parties For when the Church is litigious he may suffer the lapse to incurr without enquiry 34 H. 6. 41. Curia 35 H. 6. 18. b. and if he should be obliged to grant it ex Officio then he should never have a lapse 35 H. 6. 19. And by 34 H. 6. 38. It shall be at the costs of the parties for that the Ordinary is Judge in that case If there be but one onely that doth present to the Ordinary yet he may award a Jure Patronatus But if two present then there may be two Jure Patronatus And if the Ordinary admit his Clerk for whom the right is found upon the Writ it will excuse the Ordinary and he shall be no disturber although the right in a Quare Impedit be afterwards found for the other party But if on the said Writ the right be found for one Petron and afterwards the Ordinary admit the Clerk of the other Patron that is at his peril for he may if he please admit him notwithstanding the Commission and the finding for the other For it seems it is but for the Ordinaries better information But when the right on the said Writ is found for one Patron and the Ordinary admits the Clerk of the other Patron if it be afterwards found in a Quare Impedit that the right belongs to that Patron for whom it was found in the Jure Patronatus he will be a disturber It is some question whether the Ordinary may suffer the lapse to incurr after it is found on the said Writ for one of the Patrons It is supposed that he may not For 35 H. 6. 19. per Prisot he shall not have any lapse after it is found for one of them for he is to admit his Clerk Yet after it is found for one of them the Ordinary is not obliged to admit his Clerk without a new request made to him by the Clerk but no need of the Patrons making any new request or presentation 24. The Writ of Spoliation lies properly by one Incumbent against another Incumbent where the right of the Patron comes not into debate And therefore if a person be Created Bishop and hath a dispensation to hold his Rectory and after the Patron presents another Incumbent who is instituted and inducted the Bishop shall have against that Incumbent a Spoliation which proves the Bishop to continue Incumbent after his Consecration and to hold his Rectory by his former Presentation and in ancient times it was held that where the Pope doth Licence one who is created a Bishop to retain his former Benefice and the Patron presents another if in that Case the Elder Incumbent sues a Spoliation in the Spiritual Court it well lies for both claim by the same Patron So that if one happen during the Incumbents presentation to be presented by the same Patron or do come into the same Church by course of Law so that the Patronage comes not into Debate a Spoliation lies 25. If any man shall hold or keep the possession of a Church by force so that the Bishop or the Parson cannot do their office there it shall be removed by the Kings Writ called Vi Laica removenda as aforesaid which Writ lies especially where the debate is between two Parsons touching the same Church or Prebendaries on the Title and where the one keeps the other out by Force and Arms but by this the Force only shall be removed and not the Incumbent who is in possession of the Church whether he be in possession by right or wrong And this Writ shall be granted on the bare Surmise of the Incumbent or party greived without any Certificate made by the Bishop into Chancery as upon such Certificate also by reason thereof and there are two several forms of the Writ in these two Cases which Writ is returnable or not at the pleasure of the party who sues out the same and may be returned into the Court of Common Pleas as well as into the Kings Bench. S. was deprived by the high Commissioners for not conforming to the Canons of the Church it was general quia Refractarius but no particular Canon mentioned The King by reason of the said Deprivation presented B. who was inducted but S. would not yield up the possession of the Parsonage-house whereupon the Writ of Vi Laica issued out of
Chancery the Sheriff came to the house but could not apprehend the parties B. finding the house empty entered peaceably S. made an Affidavit in B. R. that he was ousted by the Sheriff by force and B. put in possession the Court of B. R. thereupon granted a Writ of Restitution he having an Appeal depending of the Deprivation In this Case these points were resolved 1 That the Writ De vi Laica removenda is not returnable unless the Sheriff find the Force 2 That the Kings Bench cannot award Restitution upon an Affidavit but there ought to be a Return of the Writ of Vi Laica c. in the Chancery and upon Affidavit made there that the Sheriff by virtue of the Writ hath removed one and put another in possession Restitution is awardable 3 Resolved that upon a Deprivation by the High Commissioners no Appeal lieth because the Commission is grounded upon the Prerogative of the King in the Ecclesiastical Goverment and therefore the Commissioners being immediate from the King and possessing his person no Appeal lieth 4 Resolved That the Canons of the Church made by the Convocation and the King without Parliament shall bind in all matters Ecclesiastical as well as an Act of Parliament In the principal Case it was adjudged that until the Deprivation was repealed it stood good and so B. had good Title to the Church A Lease was made of a Rectory a Parson was presented to it and upon a supposition that he was held out by Force had a Vi Laica removenda upon which the Sheriff returned Non inveni vim Laicam nec potentiam armatam notwithstanding which Return upon Affidavit that he was kept out with Force a Writ of Restitution was awarded out of the Kings Bench. Yet in Zakars Case Coke Chief Justice said we are to judge upon a Record and not upon Affidavits in which Case he being deprived for Simony Richardson Serjeant moved the Court to have him restored again because as he urged it he was unlawfully removed The reason being that in a Vi Laica removenda whereby he was removed which Writ by F. N. B. and the Register comes to remove omnem vim Laicam he shews that the Sheriff did dispossess him and put another in the which he ought not to do and as Coke Chief Justice then said that in so doing he had done against the Law if he removes one and puts another in and Richardson Serjeant there cited Robinsons Case Hill 38. Eliz. where upon an Affidavit made that the Sheriff in a Vi Laica removenda had removed one and put another in there this was debated whether upon this shewed to the Court the first man removed should be restored again or not and there resolved by the whole Court the second man to be displaced again and the first to be restored and Coke said if a Justice of Peace remove a Force he cannot put another into possession 26. There is a Writ in the Register Quod Clerici non Eligantur in officium Ballivi c. For all Ecclesiastical persons in office are allowed certain priviledges by the Common Law in respect of their Function they are exempt from all personal charges which might any way hinder them in their calling as to be Chosen to the Office of Bayliff Beadle Reeve or the like in respect of their Lands to which end the said Writ is provided which doth recite that by the Common Law they ought not to be chosen to such offices aforesaid and commands that in case any Distress be taken or Amercement levied on any of them on that account that it shall be restored So the Stat. of Marleb cap. 10. That persons of Holy Church and persons Religious shall not be commpell'd to come to the Sheriffs Tourne or Leet and so also it is by the Common Law In Favour also of Holy Church the Law did anciently allow them Two other priviledges viz. Clergy and Abjuration In the Ninth year of the Reign of King James a question was moved whether after the Conviction of an Heretick before the Ordinary the Writ de Haeretico comburendo did at that day lie or not as to the Resolution of which question the Judges were then divided in opinion as appears in the Fortieth Chapter precedent § 7. what was then controverted is now decided by an Act of Parliament made in the 29 th year of his Majesties Reign wherehy it is enacted that the Writ commonly called Breve de Haeretico comburendo with all process and proceedings thereupon in order to the executing such Writ or following or depending thereupon and all punishment by death shall be from thenceforth utterly taken away and abolished ãâã ãâã ãâã ãâã ãâã FINIS The Kings Supremacy Vld. Heyl. Cypr. Angl. p. 1. In his Cases of Conscience lib. 3. ch 3. fol. 544. Lib. 3. cap. 4. fol. 600. nu 4. Archbishops and Bishops a Spelm. in Archaeologo b Bed Eccl. Hist lib. cap. 1. 27. c D. Usserius in primord pag. 97. d Ammian Marc. lib. 14. e Philip. Berterius Pithanon Diatrib 1. c. 3. fin f Onuphr in Imperio Romana g Spartian in Severo vid. Burt. Com. in Anton. pag. 83 c. h Hist Angl. Script Antiq. Radulph Abbre Chron. Col. 435 436. i Beda l. 2. c. 3. k Bed lib. 2. cap. 9. It is Reported That Fridona a Saxon was the first English Archbishop and of the See of Canterbury in the Seventh Century about the year 656. Fuller Church-Hist Cent. 7. p. 84. nu 85. l Anonym qui de Archiepisc Ebor. scripsit An. 1460. m Harris descrip Britan. l. 1. c. 7. n Euseb Eccl Hist l. 10. c. 5. Pag. 9. See the Admir'd Selden ad Eutichii Origines pa. 122. Burt. Com on Antonin fo 81. o Herod Hist lib. 3. p C. de Reivindicat q Seld. Anaect Angl. Brit. ib. 1. cap. 7. r Ossilegium or the gleaning up of his Bones s Dio. Cassius Hist Rom. l. 76. Guardians of the Spiritualties Congé d'Eslire Election c. Radulph de Diceco Abbre Chronic. de Reg. Steph. R. Idem de Reg. R. 1. Chron. Gervas de Temp. R. 1. Hist Counc Trent lib. 8. Dict. Lib. 8. Deans and Chapters Archdeacons Procurations Diocesan Chancellors Courts Ecclesiastical Churches and Chappels pag. 169. a Claris Seld. illust in Polyol magni Poetae Angl. Cant. 8. b Guil. Stephanides Descript Lond. c Spartian Hist d Rad. de Diceto Abbr. Chron. e Hist Ri. Prioris Hagulstad de Gest R. Steph. f L. 5. Inae R. g Chron. Gârvas de Temp. H. 2. h Chron. Jo. Brampton de LI. Edm. Reg. i Idem de Legib. Kânuti Reg. Churchwardens Consolidation Dilapidations 1 Chro. 24. Suarez de Virt. Stâtu Religionis lib. 1. c. 28. nu 18. Patrons and Patronage Parsons and Parsonage Vicars Vicarages and Benefices Advowsons Appropriations Vid. G. Thorne in his chronicle De Reb. gestis Abbatum S. Augustin Cant. Commendams Lapse Collation and
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
Church so erected is by the Consecration thereof actually delivered up and made over as it were to God himself it thenceforth ceases to be of any mans property or of any Human Dominion for Quod Divini Juris est id nullius est in bonis § nullius Inst de Rer. Divis And by what is Recorded in the Life of Bishop Vlrick it should seem as if the Right of Presentation originally were in the Diocesan for the Author there saith That if any Erected a Church the Bishop consented Si legitimam Ecclesiae dotem in manum ejus Celsitudinis dare non differret c. And after the Endowment and Consecration thereof the care of the Altar was committed by him to the Priest and the Advowson firmly conveyed to the lawful Heir by the putting on a Robe Author vitae Udalrici c. 7. p. 52. Edit August Vindel. 1595. But the Bishops understanding this as a matter more of Care than of Power as appears by these moderate expressions of Nominare Praesentare or Commendare they were willing the Lay-Patron for his better encouragement to such Pious works should share with them in this priviledge which Panormitan calls Jus âonorificum yet so as that this transference of the Bishops unto Lay-Patrons should still remain under such a Limitation as that it should be necessary for the Patron to have recourse to the Bishop for the qualifying his Clerk for the Rectory by Ordination And the Bishop's prudent compliance with Lay-Patrons in this matter was not in those days without good reason if we consider what a paucity of publick Churches there then were insomuch that for want or instead thereof they frequently then said Prayers under a Cross in the open Field as is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonicae gentis c. non Ecclesiam sed Sanctae Crucis Signum c. diurnae Orationis sedulitatem solent habere Hodaeperic Hierosolym Wilibald Extat ad Canisium Tom. 4. Antiq. Lect. par 2. pag. 486. Edit Ingolst 1603. Yea and where perhaps some Churches were many of them were no better than those mentioned by Asser Bishop of Shirburne in King Alured's daies which were of so mean a structure that frequently the wind entering per parietum rimulas did blow out the Candles set before the Reliques which gave occasion to that ingenious Prince to teach us by his dexterity the mystery of making Lanthorns Ex Lignis Bovinis Cornibus 4. In the Infancy of the Christian Faith in this Island under the Saxons several particular Lords of Grand Seignories Regis ad Exemplum erected particular Churches and having Endowed them with Lands reserved to themselves and their Successors for ever a right and power to confer them on such as were meetly qualified for the same And this they did in imitation of those Kings who then Reigning here erected Cathedrals Abbies Priories Churches c. 5. An Advowson being a right of Presentation as aforesaid reserved by a Founder to himself his Heirs and Successors is applicable to other Ecclesiastical Foundations as well as those of Churches as appears by the several Quare Impedits brought on several occasions so that albeit it hath been said that by the Grant of a Church the Advowson passed and when he gave the one he gave the other yet is the word Advowson not improperly applicable to any thing wherein a Quare Impedit will lie And he in whose Right such Presentation is rested is by the Provincial Constitutions of this Realm termed Advocatus Ecclesiae because as the Constitution hath it tueri defenders Ecclesiam ejus jura tenetur ad instar Advocati qui in Judicio Causam alicujus defendit Lindw Provin Const de Foro Comp. cap. Circumspecte ver Advocatus Which every Patron is obliged to do whence Patronus and Advocatus Ecclesiae are in effect Synonymous yet in Lindwood we have the Question put whether there be any difference inter Patronum Advocatum Ecclesiae Lindw Const Prov. de homicidio cap. Sacri Gloss ibid. Where though the prevailing opinion be for the Negative yet you will also there find very Orthodox Authority for the contrary and that Advocatus intelligitur non pro Patrono sed pro Defensore Ecclesiae Gloss ibid. as appears there by Lindwood that Famous Canonist totius Orbis Britannici who being Doctor of Laws Chaplain and Official to the Archbishop of Canterbury in the time of H. 5. was by reason of his great Experience and Abilities in National Laws as well as Provincial Constitutions sent as his Embassador to the Crowns of Spain and Portugal and at his Return about An. 1422. compiled what now is extant to his Immortal Memory and Dedicating the same to the said Archbishop it was after about An. 3505 being first revised by Wolfgangus Hopylius printed at Paris at the cost and charges of William Bretton Merchant of London Mention hereof is here made in regard of the plentiful use here made of this Eminent Author in this Ecclesiastical Abridgment and that rather in the midst of this Subject touching Advowsons as presuming that for the reason aforesaid a Quare Impedit will not lie in the case of this digression 6. The Right of Patronage is it seems by the Common Law a real Right fixed or vested in the Patron or Founder in the Church wherein he hath as absolute a property and Ownership as any man hath to his Lands and Tenements or any Freehold whatever And that the Advowson or Patrons Right to Present is a Temporal and not a Spiritual Inheritance For at the first Creation of a Mannor if Lands were given to erect a Church thereon the Advowson thereof became appendant to that Mannor and reputed as parcel thereof which being Temporal the other became so also as an Accessary to the Principal for which reason such an Advowson passeth by the Grant of the Mannor cum pertinentiis Yea it hath been adjudged That by the Grant of a Mannor without making any mention of the Advowson the Advowson also passed because it was parcel of and appendant to the Mannor And it hath been ever held That by the Common Law an Advowson is a Temporal Inheritance for that it lieth in Tenure and may be holden either of the King or of a Common person and hath been held of the King in Capite or in Knights Service And were a Quare Impedit hath been brought the Plaintiff hath counted that the Defendant held the Advowson of him by Homage and Fealty And it hath been agreed that an Advowson doth lie in Tenure and that the Lord may distrain in the Glebe-Lands for Rents and Services the Patron 's Cattel if any be there found upon the Land but not the Cattel of a Stranger 7. Other Reasons it seems there are at the Common Law which prove That an Advowson is a Temporal Inheritance for that a Writ of Right of
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
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