and only Six in the other In the First of these Marriage was prohibited the time of Lent and three weeks before the Feast of St. John the Baptist and during the time between Advent and Epiphany At Sidon in the Twentieth year of the Emperour Anastasius a National Council of 80 Bishops was Assembled by the procurement of Xenaeas Bishop of Hierapolis for undoing the Council of Chalcedon which as far as in them lay they did accordingly At Aurelia that is Orleance in France in the 22 d year of Anastasius and under the Reign of Clodoveus King of France were convened 32 Bishops on purpose to settle some Order in Ecclesiastical Discipline which by reason of the irruption of Barbarous people into the Countrey of France had been brought into great disorder At Gerunda and Caesaraugusta in Spain were Two Councils under Theodoricus King of Gothes then Reigning in Spain In the former of these were only Seven Bishops convened who made some Constitutions chiefly about Baptism In the latter were Eleven Bishops and they in opposition to Supersitition and the Manichaean Hereticks prohibited Fasting on the Lords day At Rome in the Sixth Century by the Mandate of Theodoricus King of Gothes Reigning in Italy a Council was Assembled by Hormisda Bishop of Rome wherein the Error of Eutyches is damned de novo and Ambassadours sent to the Emperour Anastasius and to the Bishop of Constantinople to divert them from that Error At Constantinople in the same Century under the Emperour Justinus was another Council convened wherein many great Accusations were exhibited against Severus Bishop of Antioch who was then condemned of Heresie and afterwards Banished by the Emperour At Toledo in the same Century was a Second Council assembled partly for renewing Ancient Constitutions and partly for making New in order to Ecclesiastical Discipline By the first Canon of this Second Council of Toledo Marriage was tolerated to such of the Clergy as on their initiation to that Function protested that they had not the gift of Continency At Constantinople in the year 532. under Justinian was another Council consisting of One hundred Sixty five Bishops Menes being President or rather his Successor Eutychius Patriarch of Constantinople but Pope Vigilius who came to Constantinople to Summon the Emperour yet would not himself be present at the Council lest a seeming yielding to Eutychius might be prejudicial to his Supremacy The Emperour endeavoured to reconcile the Eutychians and the Orthodox for the Publick Tranquillity and therefore would have revoked the Articles concerning the condemning of Theodorus of Mopsuesta and of Theodoret against Cyrillus that was Anathematized But the Western Churches with Pope Vigilius constantly opposed it and confirming not only the Decrees Anathematizing those Hereticks with their Heresies of former Councils but also of Chalcedon The Errors of Origen also expunged which either denied the Divinity of Christ or the Resurrection of the Body or affirmed the Restitution of Reprohates and Devils Consult concering this Council Zonar in vit Justinian If this be that Council which some report to have been at Constantinople under the Emperour Justinian in the year 551. there appears above Twenty years difference in computation of Time This Council is said to have been occasioned chiefly for pacifying the Controversie between Eustochius Bishop of Jerusalem and Theodorus Ascidas Bishop of Caesarea Cappadocia touching Origens Books and Tenets as also for the determination of other Contentious Disputations In this Council a Question was moved Whether men that were dead might lawfully be Cursed and Excommunicated To which it was Answered That as Jâ—sias not only punished Idolatrous Priests while they were alive but also opened the Graves of them that were dead to dishonour them after their death who had dishonoured God in their life time Even so the Memorials of men might be accursed after their death who had disturbed the Church of Christ in their life At Orleans under Childebertus King of France were frequent Meetings and Assemblies of Bishops the 2 3 4 5 Councils whereby many Constitutions were made prohibiting Marriage to Priests and in the Fourth Canon of the Second Council Simony was damned At Overnie in France under Theodobertus King of France the Bishops who were present at the Councils of Orleans did assemble and Ordained That no man should presume to the Office of a Bishop by Favour but by Merit At Tours under Aribertus King of France a Council was held wherein Provision was made against such Poor as wandered out of their Parishes In this Council several Constitutions also were made relating to Bishops and the other Clergy in reference to Marriage At Paris a Council was held wherein order was taken concerning the Admission of Bishops to their Offices and that not to be by favour but with the consent of the Clergy and People At Toledo Assembled a Council of 62 Bishops where Recaredus King of Spain and the whole Nation of the West-Gothes in Spain renounced the Arrian heresie At Constantinople under the Reign of Maruitius a Council was held for trying the Cause of Gregorius Bishop of Antioch accused of Incest but declared to be Innocent and his Accuser scourged with Rods and Banished At Matiscon about the time of Pelagius the Second a Council was held wherein Command was given That none of the Clergy should Cite another having a Spiritual Office before a Secular Judge And that she who is the Wife of a man that becomes a Bishop or a Presbyter should after such Dignity become his Sister and he be changed into a Brother At Matiscon another Council was Convened under Gunthranns King of France in the 24 th year of his Reign wherein it was Ordained That Children should be Baptized at Easter and Whitsontide and that Secular men should reverence the Clergy At Rome in the year 595 and in the Thirteenth year of the Reign of the Emperour Mauritius was a Council assembled of 24 Bishops and 34 Presbyters wherein the first Four General Councils were confirmed and that for Ordination of men in Spiritual no Reward should be given or taken Before the Conclusion of this Sixth Century and precedent to the Councils last mentioned there were some other Councils of less moment such as Concilium Gradense Braccarense Lataranense Lugdunense Pictaviense Metense which being for the most part employed chiefly in damning Old Heresies and in contentious Disputations are here omitted At Rome in the year 607. under Phocas the Emperour a Council of 72 Bishops 30 Presbyters and 3 Deacons was Assembled In this Council the priviledge of Supremacy given by Phocas to the Roman Church was published And in the Eighth that is the last year of Phocas Boniface the Fourth assembled another Council at Rome wherein he gave power to the Monks to Preach Administer Sacraments hear Confessions to Bind and Loose and associate them in equal Authority with the
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
whatsoever Name or Names they may be called in their Convocation in time coming which alwaies shall be assembled by the Kings Writ unless the same Clergy may have the Kings most Royal assent and License to make promise and execute such Canons Constitutions and Ordinances Provincial or Synodical upon pain of every one of the said Clergy doing the contrary to this Act and thereof convicted to suffer Imprisonment and making Fine at the Kings will Since this year from Archbishop Cranmer to this day all Convocations are to have the Kings leave to debate on matters of Religion and their Canons besides his Royal assent an Act of Parliament for their Confirmation And as to the General Councils there are not any of them of use in England except the first Four General Councils which are established into a Law by King and Parliament The Learned Bishop Prideaux in his Synopsis of Councils gives us the definition of Synodographie and says It is such a Methodical Synopsis of Councils and other Ecclesiastical Meetings as whereby there may be a clear discovery to him that doubts how any Case may be enquired after and what may be determined concerning the same And then immediately after gives us the definition of a Council which he calls a Free Publick Ecclesiastical Meeting especially of Bishops as also of other Doctors lawfully deputed by divers Churches for the examining of Ecclesiastical Causes according to the Scriptures and those according to the power given by Common Suffrages without favour of parties to be determined in matters of Faith by Canons in cases of Practice by Presidents in matters of Discipline by Decrees and Constitutions Of these Councils he observes some to have been Judaical others Apostolical others Oecumenical some Controverted others Rejected and some National to all which he likewise adds Conferences 1 Under the Title of Judaical Councils he comprehends the more solemn Meetings about extraordinary affairs for the Confirming Removing or Reforming any thing as the matter required Such he observes to have been at Sichem under Josuah and Eleazer Josh 24. At Jerusalem the first under David Gad and Nathan being his Assistants 1 Chro. 13. At Carmelita under Ahab and Elias 1 King 18. At Jerusalem the Second under Hezekiah 2. Chro. 29. At Jerusalem the Third under Josiah and Hilkiah 2 Kin. 33. 2 Chro. 34. At Jerusalem the Fourth under Zorobabel and Ezra and the Chief of the Jews that return'd from the Captivity of Babylon And lastly that which is called the Synod of the Wise under John Hircanus Genebrand Chron. l. 2 p. 197. 2 The Apostolical Councils he observes to have been 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 Ceremonies for a time to gain the Weak by such condescension Matth. 21. 18. For composing the Apostles Creed For obtruding to the Church 85 Canons under the notion of the Apostles authority concerning which there are many Controversies Lastly for the Meeting at Antioch where among Nine Canons the Eighth commanded Images of Christ to be substituted in the room of Heathenish Idols the other pious Canons being destitute of the Synods authority vid. Bin. Tom. 1. p. 19. Longum p. 147. 3 Of Oecumenical or General Councils some were Greek or Eastern others were Latin or Western The more Famous of the Oecumenical Greek Councils were the Nicene the first of Constantinople the first of Ephesus the first of Chalcedon Of Constantinople the second of Constantinople the third The Nicene the second The more Famous of the Oecumenical Latin Councils were at Ariminum the Lateran at Lions at Vienna the Florentine the Lateran the fifth and lastly at Trent 4 Of Controverted Councils if that distinction be admissable according to the Classis thereof digested by Bellarmine the Computation is at Constantinople the fourth at Sardis at Smyrna at Quinisext at Francfort at Constance and at Basil 5 Of Rejected Councils whereby are intended such as either determine Heretical Opinions or raise Schisms the Computation is at Antioch at Milain at Seleucia at Ephesus the second at Constantinople at Pisa the first and at Pisa the second 6 Of National Synods which comprehend the Provincials of every Metropolitan or Diocesan Bishop the distribution is into Italian Spanish French German Eastern African Britain 7 To these may be added Ecclesiastical Conferences which were only certain Meetings of some Divines wherein nothing could be Canonically determined and therefore needless to be here particularly inserted vid. B. Prideaux Synops of Counc vers fin The grand Censure of the Church whereby it punisheth obstinate Offenders is by way of Excommunication which though the Canonists call Traditio Diabolo or giving the Devil as it were Livery and Seizin of the Excommunicate person yet the Romanists have a Tradition that St. Bernard Excommunicated the Devil himself Sanctus Bernardus plenus virtutibus quadam die praesentibus Episcopis clero populo Excommunicavit quendam Diabolum Incubum qui quandam mulierem in Britannia per septeunium vexabat sic Liberata est ab eo Chron. Jo. Bromton de Temp. H. 1. A miraculous Excommunication and a Sovereign Remedy against Diabolical incubations The Excommunication which St. Oswald pronounced against one who would not be perswaded to be reconciled to his Adversary had nothing so good though a more strange effect for that Excommunicated him out of his Wits and had it not been for Wolstan who as miraculously cur'd him you might have found him if not in Purgatory then in Bedlam at this day Illi cujus es says Sanctus Oswaldus Te commendo carnem Sathanae tuam trado Statim ille dentibus stridere spumas jacere caput rotare incipit Qui tamen à Wolstano sanatus cum Pacem adhuc recusaret iterum tertio est arreptus simili modo quousque ex corde injuriam remitteret offensam If you have not faith enough to believe this on the Credit of Abbot Brompton who Chronicled from the year 588 in which St. Austin came into England to the death of King Richard the First which was in the year 1198. if you have not I say faith enough for the premisses you are not like to be supplied with any on this side Rome unless you have it from Henry de Knighton Canon of Leyster who wrote the Chronicle De Eventibus Angliae from King Edgars time to the death of King Richard the Second for he in his Second Book de Temp. W. 2. doth put it under his infallible pen for an undeniable Truth And indeed is much more probable than what the said Abbot reports touching St. Austins raising to life the Priest at Cumpton in Oxfordshire 150 years after his death to absolve a penitent Excommunicate that at the same time rose also out of his grave and walked out of the Church at St. Austins command That no
Excommunicate person should be present whilst he was at Mass having in his life-time been Excommunicated by the said Priest for refusing to pay his Tithes vid. Cron. dict Bromton de Regn. Cantiae Excommunication is of such a large extent that this World is too narrow to contain it therefore it extends it self to the next World also and that not only in reference to the Soul but also to the Body insomuch that the interr'd Bodies of persons dying under Excommunication have often been inhumanely exhumated and taken out of their Parochial graves to associate with the rotten Carkases of bruit Beasts a President whereof you have in King Edward the Thirds time when the Pope by his Bull to the Bishop of Lincoln commanded That the Bodies of all such Excommunicates as in their Life-time had adhered to the Lady Wake in the Contest between her and the Bishop of Ely touching a Mannor should be taken out of their Graves and cast out of the Church-yard This is much worse than to be denied the honour of a Christian burial which by the Council at Rome An. 1180. was the punishment of such Lay-persons as transferr'd the right of Tithes to other Laicks without delivering them to the Church yet by the Sixth Canon of that Council it is Ordain'd That no man shall be Excommunicated or suspended from his Office until he be legally and duly summoned to appear and answer for himself except in such cases as deserve summary Excommunication It was a strange Excommunication as to the new and insolent Form thereof wherewith Pope Theodorus Excommunicated Pyrrhus Patriarch of Constantinople who having been infected with the Heresie of the Monothelites and thereupon Excommunicated and upon his Recantation absolved relapsed into the same Error whereupon the said Theodorus Excommunicated him the second time but in such a way and manner as never had a former President or second Practice For he infused some drops of consecrated Cup into Ink and therewith writ a Sentence of Anathema against Pyrrhus Hist Mag. Cent. 7. cap. 39. Whether the Dead may be Excommunicated was the first Question moved in the Fifth General Council at Constantinople An. 551. under the Emperour Justinian To which Eutychius answered That as Josiah opened the Sepulchres of the Dead and burnt their Bones So the Memorials of such might be accursed after their death who had injured the Church in their life for which pertinent Answer the said Emperour made him Bishop of Constantinople so that he succeeded Menas who about the same time had departed this life suddenly sitting the Council That worthy Prelate who affirmed That it was certainly unlawful to Excommunicate any man for not paying the Fees of Courts is scarce so generally credited in his Law as he may deserve to be in his Doctrines especially when his Reason for that Assertion viz. That a Contumacy there speaking of Courts Ecclesiastical is an Offence against the Civil Power is duly weighed and considered and more especially when such Fees are not paid notwithstanding the Orders and Decrees of such Courts for the payment thereof Contempts of which kind might pass wholly unpunished if Ecclesiastical Censures should not take place in such cases Many are the Prejudices which ensue upon Excommunication some whereof in case of obstinate persistency reach us as Men as well as Christians and seem as it were to unman us as well as unchristian us extending per brachium Seculare as well to our Civil Liberty as per censuram Ecclesiasticam to our Christian having a dreadful influence both on Body and Soul and that in both worlds Rebussus enumerates no less than above Threescore of these penalties for so he calls them Poenae contra Excommunicatos Rebuff de Excom non vitand Such persons as are extra Communionem Ecclesiae or Excommunicates with us were apud Hebraeos anciently called Aposynagogi as cast out of the Synagogue and for their Contumacy Extorres to be shunn'd of all men until they repented Old Such as are Anathematiz'd and under the greater Excommunication are as it were expell'd out of all Humane Society and banish'd from Mankind understand it of those within the Church such an Anathema may be somewhat compared to that Punishment which the Romans of old called Interdictio ignis aquae borrowed from the Graecians which their great Legislator Draco enacted as a Law to the Athenians and which Punishment in truth was second to none save that which is Capital Towards the close of this Ecclesiastical Abridgment you have some mention made of the Statute of Circumspecte Agatis In the Thirteenth year of the Reign of King Edward the First An. 1285. the Bounds and Limits of both Jurisdictions Spiritual and Temporal were fix'd by Parliament by a Statute under that Title the English whereof translated from the Latin out of the Records runs thus viz. The King to his Judges sendeth Greeting Vse your selves circumspectly in all matters concerning the Bishop of Norwich and his Clergy not punishing them if they hold Plea in Court Christian of such things as be meerly Spiritual viz. of penance enjoyned for deadly Sin as Fornication Adultery and such like for the which many times corporal penance or pecuniary is enjoyned specially if a Freeman be convict of such things Also if Prelates do punish for leaving Church-yards unclosed or for that the Church is uncovered or not conveniently decked in which cases none other penance can be enjoyned but pecuniary Item If a Parson demand of his Parishioners Oblations and Tithes due and accustomed or if any person plead against another for Tithes more or less so that the Fourth part of the value of the Benefice be not demanded Item If a Parson demand Mortuaries in places where a Mortuary hath used to have been given Item If a Prelate of a Church or if a Patron demand a ` Pension due to themselves all such demands are to be made in a Spiritual Court And for laying violent hands on a Priest and in case of Defamation it hath been granted already that it shall be tried in a Spiritual Court when money is not demanded but a thing done for punishment of Sin and likewise for breaking an Oath In all cases afore rehearsed the Spiritual Judge shall have power to take knowledge notwithstanding the Kings Prohibition vid. Lindw Constit lib. 2. Tit. De Foro-Competenti Vid. Full. Chur. Hist. lib. 3. p. 79. Now whereas some doubt hath heretofore been whether this were indeed an Act of Parliament or any thing more than a Constitution made by the Prelates themselves or only a meer Writ issued out from the King to his Judges Sr. Ed. Coke Instit. par 2. pag. 487. resolves it in express terms thus viz. Though some have said that this was no Statute but made by the Prelates themselves yet that this is an Act of Parliament it is proved not only by our Books but also by an Act of Parliament By this Statute of Circumspecte Agatis the
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
Vi Laica removenda further explain'd 26. The Writ Quod clerici non eligantur in Officium 1. AGainst the unlawful Possessor who is the Usurper liveth Three Writs viz. One of the Right as the Writ of Right of Advowson and the other two of the Possession viz. A Quare Impedit and Darrein Presentment This Assize of Darrein Presentment or Assisa ultimae Praesentationis is a Writ which lieth where a man or his Ancestor hath presented a Clerk to a Church and after the Church becoming void by his death or otherwise a stranger presents his Clerk to the same Church in disturbance of him who had last presented This Writ is otherwise also used and differs from that of a Quare Impedit for the Quare Impedit lies upon the disturbance of one who hath the Advowson in his Presentation when the Church is void The other lies where a man or his Ancestors had presented before and now the Church becoming void again a stranger presents in disturbance of him who had last presented Where ever a man may have Assize of Darrein Presentment he may have a Quare Impedit but not e contra He that hath right to present after the death of the Parson and bringeth no Quare Impedit nor Darrein Presentment but suffereth a stranger to usurp upon him yet he shall have a Writ of Right of Advowson but this Writ lieth not unless he claim to have the Advowson to him and his heirs in Fee Simple Where the Ordinary Metropolitan or King presents for Lapse any of these Collatives will serve the Patron for a possession in his Assize of Darrein Presentment which Assize of Darrein Presentment may not be purchased pending a Quare Impedit for the same avoidance and therefore in the Case where William St. Andrewes brought a Writ of Assize of Darrein Presentment against the Archbishop of York Mary Countess of Shrewsbury and one Hacker aud the Bishop making default the Countess and Hacker pleaded in Abatement that the Plaintiff before the Writ purchased brought a Quare Impedit against the same Defendants and shews all certain which remains undetermined and averrs that they are both of the same avoidance And upon Demurrer the Writ was abated by Judgment 2. Assize de utrum or Assisa utrum is a writ which lieth for a Parson against a Layman or for a Layman against a Parson for Land and Tenements doubtful whether it be Lay-Fee or Free Almes These Writs are called Assizes probably either because they settle the possession and so an outward Right in him that obtains by them or because they were originally executed at a certain time and place formerly appointed or because they are tryed most commonly by especial Courts set and appointed for that purpose The Incumbent as touching his Right for his Rectory hath the onely Writ of Juris utrum and for his possession any other possessory Action 3. Quare Impedit is a Writ which lieth for him who hath purchased an Advowson in Gross or a Mannor with an Advowson thereunto appendant and against him who when a Parson Incumbent dieth or a Church otherwise becomes void disturbeth the other in the Right of his Advowson by presenting a Clerk thereunto being void Vhis Writ is distinguish'd from the former of Darrein Presentment or Assisa ultimae Praesentationis because this latter lieth as aforesaid onely where a man or his Ancestors formerly presented but the Quare Impedit lies properly for him who himself was the Purchaser of the Advowson though he that may have Assize of Darrein Presentment may have the other if he please but not so Vice versa as was also before observed Yet it is said in Reg. Orig. f. 30. That a Quare Impedit is of a higher Nature than an Assize of Darrein Presentment because it supposeth both a Possession and a Right Which Quare Impedit the Executors of a Testator may as well as himself might have upon a disturbance made to the Presentment and so was the Opinion of the whole Court in Smallwoods Case awainst the Bishop of Coventry and Lichfield that the Executors may have a Quare Impedit upon a disturbance made to the Presentation which Writ lieth also of a Chappel Prebend c. And in case after the death of the Ancestor of him that presented his Clerk unto a Church the same Advowson be be assigned in Dower to any Woman or to Tenant by the Courtesie which do present and after the death of such Tenants the very Heir is disturbed to present when the Church is void it is in his election whether he will sue the Writ of Quare Impedit or of Darrein Presentmet the which it seems is also to be observed in Advowsons Demised for term of life or years or in Fee Tail And Dammages shall be awared in both these Writs that is if the time of Six Months pass by the disturbance of any so that the Bishop doth thereby Collate to the Church and the very Patron lose his Presentation for that turn Dammages shall be awarded for two years value of the Church And if the Six Months be not elapsed but the Presentment bederaigned within that time then Dammages shall be awarded to the half years value of the Church And if the disturber hath not wherewith to satisfie the Damages where the Bishop Collateth by lapse of time he shall suffer two years Impisonment and half years imprisonment where the Advowson is deraigned within the half year Likewise he that recovers a Mannor whereunto an Advowson is appentlant being disturbed to present when the Church is void shall have a Quare Impedit In which as also in Assise of Darrein Presentment plenarty of the Defendants or Disturbers party is no plea but two Quare Impedits of one Church and for one avoidance a man cannot have In the Case between the King and the Bishop of Norwich and Saker and Cole it was resolved that when one is admitted instituted and inducted by the presentation of a common person though it was upon an usurpation upon the King yet the King cannot remove the Incumbent without a Q. Impedit brought for the Church is full of him till he be removed Cro. par 2. 4. Ne admittas is a Writ that lieth for the Plaintiff in a Quare Impedit or him that hath an Action of Darrein Presentment depending in the Common Pleas and feareth that the Bishop will admit the Clerk of the Defendant during the dependency of the Suit betwixt them This Writ must be sued within six months next after the Avoidance because after the six months the Bishop may present by the lapse Therefore if the Patron of a Church vacant having or not having any Controversie depending with another touching the right of Presentation doubteth that before he makes his Presentation the Bishop may collate a Clerk of his own or admit a Clerk presented by another to the same Benefice unto