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 accâ—ssu 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
H. 6. 19. per Prisot y 8 E. 4. 24. b. per Curtam 5 H. 7. 20. b. per Reble and 22 H. 6. 30. per Mark. z Rol. Abr. Ver. presentment lit P. pag. 384. a 21 H. 6. 44. 34. H 6. 40. b 21 H. 6. 44. c 34 H. 6. 11. b. per Prisot 34 H. 6. 38. d 34 H. 6. 11. b. e ibid. per Prisot f 21 H. 6. 44. 45. Rollâ—ubi supra g 34 H. 6. 12. per curiam h F. N. B. Spoliation fo 36. b. vid. Casâ— Edes vers the Bishop of Oxford in Vaugh. Rep. i 38 H. 6. f. 19. Br. Spoliation pl. 4. O. N. B. 33. b. F. N. B. 54. Finch Nomotexnia p. 138. Bird and Smiths Case More 's Rep. Roberts and Amond shams Case More 's Rep. Mich. 13. Jac. B. R. the Kings case against Zakar Bulst par 3. F. N. B. 175. b. Finch ubi sup p. 135. Stamf. 133. Cap. 40. sect 7. in fin sect pag. 564. THE INDEX Referring to PAGE and PARAGRAPH ABBY-Lands how many ways priviledged or dischargâ—◠〈◊〉 Tithes p. 383. How the Abby of Battel came to be dispensâ—â— with from Visitation p. 108. Sect. 8. When and by whom 〈◊〉 Abby of Westminster was founded p. 328. Sect. 5. Abbot whence that word is derived and what it signifies p. 326 327. Sect. 1. How many Abbots anciently in England p. 327. Sect. 1. and 328. Sect. 5. They were reputed as Peers p. 327. Sect. 2. Some were Elective others Presentative p. 328. Sect. 5. When and by whom made Elective p. 331. Sect. 7. Three Abbots condemn'd at once for denying the Kings Supremacy p. 10. Sect. 14. Abeyance what p. 183. Sect. 9. and 189. Sect. 8. and 284. Sect. 3. Abjuration The form thereof anciently p. 141 142. Sect. 8. Absence of the Husband from the Wife what requisite to cause a Divorce p. 494. Sect. 2. Abstinence or Fasting Days the Original thereof in England p. 130. Sect. 44. Acceptance of Rent by a Bishop whether it shall bind him p. 38. Sect. ult By a Parson whether it confirms the Lease made by his Predecessor p. 189. Sect. 8. Accessories determinable in that Court which hath cognizance of 〈◊〉 Principal p. 114. Sect. 11. and p. 123. Sect. 25. Accompt in what case an Executor shall not be compelled thereunâ—â— p. 116. Sect. 12. Acorns Whether Tithable p. 383. Action upon the Case in what Case it may lye at Common Law for suing in the Ecclesiastical Court p. 444. Administrator how he may make his own Goods 〈…〉 Debts p. 86. Sect. 11. Admission what and under what qualification 〈…〉 p. 272. Sect. 6. the form thereof p. 272. Sect. 7. Admittendo Clerico in what Cases that 〈…〉 Adultery where Cogniâ—able and 〈…〉 Advocatio Medietatis Ecclesiae Medietatis Advocationis Ecclesiae the difference in Law between them p. 206. Sect. 2. Advocatione decimarum what that Writ imports p. 647. Sect. 7. Advowe or Avowe who properly such p. 206. Sect. 2. and p. 213. Sect. 14. Advowson what and whence derived p. 205. Sect. 1. Twofold p. 206. The Original thereof p. 207. Sect. 3 A Temporal non Spiritual Inheritance p. 209. Sect. 6 7. How Advowson in Gross differs from Appendant p. 210. Sect. 8. Whether it may be extended p. 182. Sect. 7. By what words in a Grant it may pass or not p. 211. Sect. 10. p. 214 Sect. 15 16. Whether it may be Assets p. 214. Sect. 15. Whether the Advowson of a Vicarage endowed belongs to the Parson or the Parsons Patron p. 216. Sect. 21. Whether the Advowson of a Vicarage doth pass by the Grant of the Vicarage p. 219. Sect. 24. Three Original Writs of Advowsons p. 216. Sect. 20. Aftermath and Aftergrass whether Tithable p. 384. Age at what age a Minor Executor may administer p. 219. Sect. 16. Agistment what and whether Titheable p. 384 385. Agreement between Parson and Parishioner touching Tithes p. 373. Sect. 47. and p. 385 386. Good for years without Deed not so for Life p. 379. Sect. 69. and p. 386. Alcheron how severely it doth punish Adultery p. 471. Sect. 6. Aldermanus anciently what p. 96. Sect. 1. Aliens whether presentable to a Church in England p. 264. Sect. 26. and p. 272. Sect. 6. Alimony what p. 508. Sect. 13. where cognizable p. 510. Sect. 16. 18 19. In what Cases the Law allows Alimony or not p. 509 510. Sect. 14 15. whether due to her that Elopes p. 508. Sect. 13. Alms or things appointed for that end whether Tithable p. 386. Altarage what p. 339. Sect. 1. whether Tithe Wool or Tithe Wood shall pass by the word Altaragium p. 341. Sect. 3. p. 342. Sect. 4 5. St. Andrews in Scotland when and by whom the Bishop thereof was made Metropolitan of all Scotland p. 18. Sect. 9. Animalia Utilia Inutilia the difference between them in reference to Tithes p. 360. Sect. 17. and p. 386. Annates what by and to whom payable p. 335. Sect. 1. The Original thereof p. 337. Sect. 2 3. vid. First-fruits Annua Pensione what that Writ imports p. 648. Sect. 14. Anselme Archbishop of Canterbury the first that made Appeals to Rome p. 97. Sect. 1. and p. 118. Sect. 13. The first Archbishop of Canterbury that was Legatus Natus p. 98. Sect. 1. Apparitor Action against such for false informing p. 88. Sect. 14. vid. Summoner Appeals to Rome prohibited p. 9. Sect. 14. p. 118. Sect. 13. They are made to the King in Chancery p. ibid. Appeal out of Ireland to the Delegates in England in what case p. 407. vid. Delegates Appellatione remota the effect of that clause in Law p. 117. Sect. 13. Apples what Tithes they pay whether small to the Vicar or great to the Parson p. 361. Sect. 21. p. 386. In what case they may not be Tithable p. 371. Sect. 44. Appropriation what p. 223. Sect. 3. The original thereof p. 221 222. Sect. 1. Whether it may be made without the Kings License ibid. and p. 198. Sect. 3. Whose Assents are requisite thereunto p. 222. Sect. 1. How they are now chang'd in their use and end from what they were originally p. 223. Sect. 2. Whether they might formerly be granted to Nunneries p. 223. Sect. 2. and p. 225. Sect. 5. They may not now as to their Original be called into question p. 226. Sect. 6. How a Church Impropriate may become disappropriate p. 229. Sect. 12. Arabians their strange conceit of Adultery p. 471. Sect. 6. The punishment thereof with them Capital ibid. Arable Land left Fallow and untill'd every other year whether Tithable that year p. 394. Archbishop whence so called A description of that Dignity p. 12. Sect. 1. What difference between Archbishop and Metropolitan p. 15. Sect. 3. Three Archbishops in England and Wales anciently p. ibid. Sect. 4. How that in Wales came to be lost and when p. 17. Sect. 6. None in Ireland until the year 1152. p. 20. Sect. 13. In what Cases an Archbishop may call
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-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
in question hath been of a Mixt nature in reference to Jurisdictions 29. Certain Reasons for denial of Prohibitions to the Ecclesiastical Court in some Cases where they might lie 30. Bounds of Parishes in reference to the Tithes thereof whether Tryable by the Law of the Land or by the Law of the Church 31. Where the Question is more touching the Right of Tithes than the Bounds of the Parish the Ecclesiastical Court hath had the cognizance 32. The Ecclesiastical Court hath cognizance of Administrators Accounts and no Prohibition lies 33. Modus Decimandi sued for by a Parson in the Eccllesiastical Court no Prohibition Nor if he there sues for the Tithe of things not Titheable 34. In what cases a Custome as also a Rent may be sued for in the Ecclesiastical Court 35. If Question be touching the Grant of a Registers Office in a Bishop's Court or touching the Tenth after severance from the Nine parts In what Court whether Temporal or Ecclesiastical it shall be tryed 36. A Woman exercising the Profession of a Midwife without License is therefore sued in the Ecclesiastical Court whether a Prohibition lies in that case 37. The Bounds of a Parish also whether such a Church be Parochial or only a Chappel of Ease In what Court this is to be tryed 38. A Prohibition granted upon the disallowance of an Executors Plea of having Assets only to pay Debts in opposition to a Legacy sued for in the Ecclesiastical Court 39. A Prohibition awarded upon a Suit in the Ecclesiastical Court for an account of the Profits of a Benefice Otherwise in case the Profits were taken during the time of a Sequestration 40. A Prohibition granted to a Party to stay proceedings in his own Suit and commenced by himself 41. Pensions are sueable only in the Ecclesiastical Court 42. The right of Tithes coming in question between the Parson and the Vicar is a Suit properly belonging to the Ecclesiastical Court 43. Whether and how far and in what manner the Ecclesiastical Court may take cognizance of a Modus Decimandi at large debated 44. When and how the Canon Law was introduced into this Realm 1. BEfore the time of King William the Conqueror all matters as well Spiritual as Temporal were determined in the Hundred-Courts where was wont to sit one Bishop and one Temporal Judge called Aldermanus the one for matters of Spiritual the other of Temporal cognizance But that was altered by King William and it seems by Parliament for it was by the assent of the Bishops Abbots and all the chief persons of the Realm for he Ordained That the Bishop or Archdeacon should not hold Plea of the Episcopal Laws quae ad Regimen animarum pertinent in the Hundred but by themselves and there administer Justice not according to the Law of the Hundred but according to the Episcopal Laws and Canons as appears by King William's Charter Irrot. 2. R. 2. pro Decano Capitulo Eccles Lincolne Jan. Angl. 76 77. The Principal Courts Ecclesiastical whereof some are now out of use were and are the Convocation Court the High Commission Court the high Court of Arches the Prerogative Court of Canterbury the Court of Delegates the Court of Audience the Court of Peculiars the Court of Faculties besides the Bishops Consistories the Archdeacons Courts and the like anciently called Halimots or holy Courts And the Saxon Kings long before William the Conqueror made several Laws for the Government of the Church Among others St. Edward begins his Laws with this Protestation that it is his Princely charge Vt Populum Domini super omnia Sanctam Ecclesiam regat gubernet And King Edgar in his Oration to his English Clergy Ego saith he Constantini vos Petri gladium habetis jungamus dextras gladium gladio Copulemus ut ejiciantur extra castra Leprosi purgetur Sanctuarium Domini But upon the Conquest made by the Normans the Pope took the opportunity to usurp upon the Liberties of the Crown of England for the Conqueror came in with the Popes Banner and under it won the Battel Whereupon the Pope sent two Legates into England with whom the Conqueror called a Synod deposed Stigand Archbishop of Canterbury because he had not purchased his Pall in the Court of Rome and displaced many Bishops and Abbots to make room for his Normans Among the rest the King having earnestly moved Wolstan Bishop of Worcester being then very aged to give up his Staff was Answered by him That he would give up his Staff only to him of whom he first received the same And so the old Bishop went to St. Edward's Tomb and there offered up his Staff and Ring with these words viz. Of Thee O holy Edward I received my Staff and my Ring and to thee I do now surrender the same again Which proves that before the Norman Conquest the Kings of England invested their Bishops per Annulum Baculum By this admission of the Pope's Legates was the first step or entry made into his usurped Jurisdiction in England yet no Decrees passed or were put in execution touching matters Ecclesiastical without the King 's Royal Assent nor would he submit himself in point of Fealty to the Pope as appears by his Epistle to Gregory the Seventh Vid. Da. Rep. Case of Praemunire fo 89. yet in his next Successors time in the time of William Rufus the Pope by Anselme Archbishop of Canterbury attempted to draw Appeals to Rome but prevailed not Upon this occasion it was that the King told Anselme That none of his Bishops ought to be subject to the Pope but that the Pope himself ought to be subject to the Emperour and that the King of England had the same absolute Liberties in his Dominions as the Emperour had in the Empire Yet in the time of the next King H. 1. the Pope usurped the Patronage and Donation of Bishopricks and all other Benefices Ecclesiastical at which time Anselme told the King That the Patronage and Investure of Bishopricks was not his Right because Pope Urban had lately made a Decree That no Lay-person should give any Ecclesiastical Benefice And after this in a Synod held at London An. 1107. a Decree was made Cui annuit Rex Henricus says Matth. Paris that from thenceforth Nunquam per donationem Baculi Pastoralis vel Annuli quisquam de Episcopatu vel Abbathia per Regem vel quamlibet Laicam manum investiretur in Anglia Hereupon the Pope granted That the Archbishop of Canterbury for the time being should be for ever Legatus Natus And Anselme for the honour of his See obtained That the Archbishop of Canterbury should in all general Councils sit at the Pope's foot tanquam alterius Orbis Papa Yet after Anselme's death this same King gave the Archbishoprick of Canterbury to Rodolph Bishop of London says Matth. Paris Et illum per Annulum Pastoralem Baculum investivit as before he had invested William Gifford in
for the avoiding of Leases made by a Parson by his Absence from his Living by the space of eighty daies in one year and also shews that one Stallowe who was Parson of Sharrington to whom these Tithes did belong and in whose Right the Defendant claimed them was Absent from his Parsonage by the space of eighty daies in one year and shews in what year and so by this his interest determined and Agreement with the Plaintiff by this made void but they found further as the Plaintiff made it to appear That Stallowe the Parson of Sharrington was not Absent in manner as it was alledged for that they found that he did dwell in another Town adjoyning but that he came constantly to his Parish-Church and there read Divine Service and so went away again They did also find hat he had a Parsonage-house in Sharrington fit for his habitation and whether this were an Absence within the Statute as to avoid his Lease they left that to the Judgment of the Court Yelverton Justice This is a good Non-Residency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case that he was Absent for he came four daies in every week and in his Parish-Church did read Divine Service Williams Justice upon the Statute of 13 and 14 Eliz the Parson ought not to be Absent from his Church eighty daies together in one year à Rectoria sua but this is not so here for he came to his Church and read Divine Service there every Sunday Wednesday Friday and Saturday and therefore clearly this cannot be such an Absence within the scope and intention of these Statutes as thereby to avoid his Lease Yelverton Justice he ought to be Absent eighty daies together per spatium de Octogin diebus ultra and this to be altogether at one time and so the same ought to have been laid expresly the which is not so done here for that it appears here that he was at his Parsonage-house and did read Prayers every Sunday Wednesday Friday and Saturday and so the whole Court were clear of Opinion that this Absence here as the same appeared to be was not such an Absence by the space of eighty daies in one year to avoid his Lease within the said Statute and so the Defendants Plea in Barr not good and therefore by the Rule of the Court Judgment was entered for the Plaintiff 17. An Information was Exhibited against Two Parsons by J. S. upon the Statute of 21 H. 8. cap. 13. against one of them for Non-Residency and against the other for taking of a Farm the one of them pleaded Sickness and that by the Advice of his Physicians he removed into better Air for Recovery of his health and this is justifiable by the whole Court vid. more for this Coke 6. par fo 21. in Butler and Goodall's Case The other pleaded That he took the Farm for the maintenance of his House and Family And this also is justifiable by the Opinion of the whole Court Crooke moved the Court for the Defendants That the Plaintiff was a Common Informer and that he did prefer this Information against them only for their vexation and so to draw them to compound with him as formerly he hath so done by others for which they prosecuted an Indictment in the Countrey upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses The whole Court did advise them to prosecute this Indictment against him Crooke moved for the Defendants That in regard the Informer is a man of no means that the Court would order him to put in sufficient Sureties to answer Costs if the matter went against him and that then the Defendants would presently answer the Information Williams Justice nullam habemus talem legem this is not to be done but the Rule of the Court was That the Defendants should not answer the Information until the Informer appeared in person 18. In an Action of Covenant the Plaintiff in his Declaration sets forth that the Defendant was Parson of D. and did Covenant That the Plaintiff should have his Tithes of certain Lands for thirteen years and that afterwards he Resigned and another Parson Inducted by which means he was ousted of his Tithes and for this cause the Action brought The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Residency upon which Plea the Plaintiff demurr'd in Law It was urged for the Plaintiff That the Plea in Barr was not good because it is not averred that the Defendant had been Absent from his Parsonage by the space of Eighty daies in a year for otherwise the Covenant is not void by the Statutes For the Defendant it was alledged That the pleading of the Statute of 13 Eliz. is idle but by the Statute of 14 Eliz. this Covenant is made void for by the Statute all Covenants shall be all one with Leases made by such Parsons And in this case if this had been a Lease this had been clearly void by Surrender of the Parson and so in case of a Covenant Doderidge and Houghton Justices The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law nor intended to make any Leases void which were void at the Common Law and therefore this Covenant here is not made void by the Statute unless he be Absent Eighty daies from his Parsonage Coke Chief Justice agreed with them herein They all agreed in this Case for the Plaintiff and that by the Preamble of 14 Eliz. it is shewed the intent of the Statute to be to make Covenants void within the Provision of 13 Eliz. by Absence for Eighty daies And Judgment in this Case was given for the Plaintiff CHAP. XXIX Of Abbots and Abbies also of Chauntries and of the Court of Augmentations 1. Abbot what why so called the several kinds thereof and how many anciently in England 2. A famous Abbot anciently in Ireland The manner of their Election prescribed by the Emperour Justinian Anciently the Peers of France were frequently Abbots 3. The ancient Law of King Knute concerning Abbots 4. The Abbot with the Monks making a Covent were a Corporation 5. Abbots were either Elective or Presentative they were Lords of Parliament How many Abbies in England and which the most Ancient Founded by King Ethelbert 6. Chaunter and Chauntries what and whence so called their use and end 47 belonging anciently to St. Pauls in London when and by what Laws their Revenues were vested in the Crown 7. Before King John's time Abbots and Priors were Presentative afterwards Elective 8. Six Differences taken and Resolved in a Case at Law touching Chauntries 9. Certain Cases in Law touching Lands whether under pretence of Chauntries given by the Statute to the King or not 10. What the Court of Augmentations was the end
and use thereof when Erected how Established and by whom Dissolved 1. ABba and Abbas have one and the same signification therefore Abbots are called Patres c. ult de Regular Tuseh Concl. 3. nu 7. It is either an Hebrew or Syriack word signifying Pater with the Greeks and Latins from the two first Hebrew Elements or Letters Aleph and Beth inverted which Name the Monks first assumed at their Original in Syria and Egypt And although now in this Kingdom we know no more of this word Abbot than the very Name thereof yet for his Antiquities sake he hath the Alphabetical precedence in the Index of this Abridgment whether he be Archimandrita Novel Const 115. or Coenobiarcha or Archimonachus Hottom in ver Feuda Marsil colum de Eccles redit c. 15. nu 5 6. whether Miter'd and thereby exempt from the Diocesan's Jurisdiction as having within their own Precincts Episcopal Authority in themselves and being Lords in Parliament whence called Abbots Sovereign 9 R. 2. c. 4. Or not Miter'd but subject to the Diocesan in all Spiritual Government c. Monasteria 18. q. 2. c. Abbas c. Visitandi cum 4. seq ibid. Omnes 16. q. 7. c. cum Venerabilis Extra de Relig. Dom. vid. Stow. Ann. p. 442. So called Abbas because he is Pater Monachorum Januen in suo Cathol glo Jo. Andr. de Rescript c. 1. verb. Abbates in Clem Coke de Jure Ecclesiast fo 28. and hath the chief government of a Religious House and who with the Monks makes a Covent of these Abbots together with two or three Priors there were heretofore in England about the number of Thirty in all What Consecration is to a Bishop that Benediction is to an Abbot but in divers respects for a Bishop is not properly such until Consecration but an Abbot being Elected and Confirmed is properly such before Benediction cap. de Suppl negl Prael lib. 1. 10. Clem. § Statuimus de Stat. Monach. in Clem. cap. Meminimus de Accusat 2. The Venerable Mr. Bede speaks of an Island in Ireland which ever had an Abbot vested with such power and authority that every Province yea and the Bishops themselves were under his Government and subject to his Jurisdiction Beda lib. 3. de Gestis cap. 3. Spelm. de Prim. Eccles Angl-Sax An. 603. The Emperour Justinian in the First Book of his Codes hath expresly ordained and prescribed the manner and form of the Election and Confirmation of an Abbot and what persons they ought to be and how qualified that shall be accounted worthy of that Ecclesiastical Dignity C. l. 1. tit 3. l. 47. l. 40. De Episc Cler. Novel 5. cap. 9. Novel 123. c. 34. Mr. Blount in his Nomo-Lexicon takes notice of the word Abbacy and saies it is the same to an Abbot as Bishoprick is a Bishop resembling it to the word Paternity and a very Ancient Record wherein that word is used An. 34 35 H. 8. c. 17 18. Sciant .... quod Ego Isabella Comitiss Penb. pro Salute Animae meae Dedi Deo Abbathiae de Nutteleg totam Wicham juxta dictam Abbathiam c. In these latter Ages the Abbots through the savour of Princes and their respect to the Church have been reputed as Peers and Secular Lords to whom the granted the Provenues of Abbacies proportionable to such Dignity for the support thereof Thus many of the Peers of France have very anciently and frequently been Abbots as appears by Paradine who wrote the Annals of Burgundy nigh Seven hundred years since and then affirmed that he had seen very Ancient Records wherein the Peers of France used these styles and distinctions viz. Duke and Abbot Earl and Abbot c. Guil. Paradin Annal. Burgund lib. 2. sub An. 1103. Prat. 3. Notwithstanding the ill opinion which in these daies not without cause is conceived of the Ancient Abbies yet it cannot without some breach of charity be well supposed but that such Houses commonly called Religious were in the primitive and true intent thereof better purposed by the Founders than after practised by their Inhabitants for by the Law made in the daies of K. Knute nu 6. i is evident what strict Devotion and blameless Conversation the Ancient Princes of this Realm expected from such as then possessed these Abbies The Law was this viz. We will that Gods Ministers the Bishops Abbots c. do in a special manner take a right course and live according to Rule that they call to Christ night and day much and oft and that they do it earnestly And we Command them that they hearken to God and love Chastity Full truly they wit that it is against the Right to meddle with Women for Lusts sake Annot. Ridl View c. cap. 4. Sect. 1. Whereby it seems these Spiritual Fathers were suspected of old to incline to the Flesh all daies of the week An Abbot might be Presented to a Church for he was capable of an Appropriation whereby he was perpetual Parson Imparsonee and had Curam Animarum 34 H. 6. 15. 4. The Abbot or the chief Head of Abbies being together with the Monks of the same House a Covent made a Corporation and was not by the Common Law further charged with his Predecessors Acts than for such things as were for the use of the House or such Acts as were done under the Common-Seal thereof And albeit a Creditor had a Specialty against a Monk yet not the Abbot but the Monk's Executors were chargeable for his Debt contracted before his entry into Religion unless it were for some such thing as came to the use of his House 5. Of these Abbots some were Elective others Presentative and under this Title were comprehended other Corporations Spiritual as Prior and his Covent Friers Canons and such like And as there were Lord-Abbots so there were also Lord-Priors who had exempt Jurisdiction and were Lords of Parliament Co. de Jur. Ecclesiast fo 28. a. It is supposed that the Abbot of St. Austins in Canterbury was the Ancientest of any in this Kigdom Founded by King Ethelbert in An. 602. And next to him in Antiquity the Abbot of Westminster Founded by Seabert King of the West-Saxons An. 604. Some difference there is among Authors touching their Number in this Realm whereof some reckon but Twenty six Sir Edw. Coke says they were Twenty seven Abbots and Two Priors But a very Modern Writer gives us a Catalogue of no less than Thirty three Abbots and Priors whereof some were Priors Alieâ—s born in France Governours of Religious Houses erected for Foreigners here in England suppressed by Henry the Fifth after his Conquests in France and their Revenues after given by Henry the Sixth to other Monasteries and Houses of Learning specially for the crecting of Kings Colledge in Cambridge and Eaton Stow Annals p. 582. 1 H. 5. c. 7. 6. Chaunter Cantator A Singer in the Quire At St. Davids
Simony and the Error of the Nicholaitans whereof they counted such Priests guilty as had married Wives though they did not as the Nicholaitans make them Common At Mantua An. 1066. the Emperour Henry the Fourth assembled a Council for pacifying the Differences in the Roman Church between Alexander the Second and Candalus called Honorius the Second wherein Alexander was declared Pope and Candalus pardoned At Winchester Pope Alexander the Second by two Cardinals sent into England Assembled a Council to appease the Troubles of the Church in this Kingdom wherein they deposed certain Bishops and Abbots among whom Stigandus Bishop of Canterbury because he had possessed that Chair Robert Archbishop thereof being then alive and because he possessed another Bishoprick with it viz. the Bishoprick of Winchester At Friburgh anciently called Tributia the Bishops of Germany assembled themselves in a Council in which they declared the Archbishop of Bremen to be an Enemy to their Countrey except he delivered up the young Emperour Henry the Fourth to be educated according to the Covenant made between the Princes and Bishops of Germany during his Minority At Mentz An. 1069. a Council was assembled in order to a Divorce of the Emperour Henry 4. from his Wife from which he was disswaded by the Arguments of Petrus Damianus the Popes Nuncio for that purpose At Erfurd An. 1074. the Bishop of Mentz assembled a Council in order to an observance of a Command from Pope Gregory 7 th touching a separation of the Priests within the Bishoprick of Mentz from their Wives or else to depose them from their Offices By reason whereof as also by reason of the Bishops exaction of Tithes from Turingia this Council rose in a tumult and great confusion re infecta At Mentz An. 1075. the Bishop thereof being commanded by Pope Gregory 7 th to separate the Priests from their Wives convened a Synod but the married Priests so terrified the Bishop of Mentz and the Bishop of Chur the Popes Nuncio that this Council also as the former was dissolved and nothing done At Wormes the Emperour assembled all the Bishops of his Kingdom in order to a deposing of Pope Gregory 7 th otherwise called Hildebrand accused of Perjury Ambition Avarice and Pride The determination of this Council was That he should be removed from the Popedom which was Subscribed by all the Bishops present at the Council At Friburgh An. 1076. another Council was assembled wherein the Princes of Saxony and Sweve appeared in favour of the See of Rome against the Emperour Henry the Fourth At Rome by order of the Pope a Council was assembled in Lent wherein the Emperour Henry 4 th was not only Anathematiz'd but also denuded as far as in them lay of his Imperial Dignity At Brixia in the year 1080. the Emperour Henry 4 th assembled 30 Bishops of Germany and Italy together with many Princes of the Empire All which consented That Hildebrand should be deposed from the Popedom and Gilbertus Bishop of Ravenna placed in his room At Rome An. 1081. the Emperour Henry 4 th with the Advice of the Roman Senate appointed a Council to be Assembled wherein Hildebrand was deposed and Gilbertus otherwise Wigbertus to succeed in the Papacy This Council was called by the said Emperour soon after he had besieged and taken the City of Rome At Beneventum a Council was Assembled by Pope Victor the Third who before his Election to the Papacy was named Desiderius Abbot in Cassinates chosen by the Romans not regarding Gilbertus whom the Emperour had made Pope In this Council Victor the Third Anathematized Gilbertus Bishop of Ravenna At Clermont in Overnie of France in the year 1095. Vrbanus the Second convened a great Assembly wherein it was Ordained That an Army should be raised for support of the distressed Christians in Jerusalem and recovery of the Holy Land out of the hands of the Infidels The which was likewise Ordained in the Council of Placentia and other Councils of the lesser concern here omitted for Brevities sake In the next viz. the 12 th Century there were above 115 Councils To instance in the most material of them may suffice for this Abridgment At Paris Vrbanus the Second at the complaint of Alexius Emperour of Constantinople against the rage of the Turks assembled a Council of most Nations and was present himself thereat In this Council were appointed 100000 Men out of the Western Kingdoms for the Holy Land At Florence Pope Paschalis the Second convened a Council wherein the Bishop of Florence was called to an account for Preaching openly That Antichrist was already come for which he was sharply rebuked and commanded That for time to come he should utter no such Doctrine At London in the year 1102. in the Third year of the Reign of Hen. 1. King of England Anselmus Archbishop of Canterbury assembled a Council for prohibiting the Marriages of Priests and the year following was constrained to convene another Council at St. Pauls in London to make Constitutions for the punishment of such as defiled themselves with Sodomitical Lusts At Mentz An. 1106. a great Council was assembled against the Emperour Henry 4. whom they condemned of Heresie which was Simony because he would not resign the Right of Investure of Bishops into the Popes hands and having Excommunicated him took off his Imperial Crown At Troyes in France in the year 1107. Pope Paschalis the Second convened a Council which treated concerning the Investure of Bishops not to be in the power of Lay-persons At Triburia in Friburgh in the year 1119. the Bishops of Germany assembled concerning the Investure of Bishops and in opposition to the Emperour Henry the Fifth At Senon a Council was called against Abelardus by reason of his Heresie He was also accounted an Heretick in the Council of Soâ—sson The First Four Lateran Councils are comprehend under one and the same Title as more favouring the Roman Dissentions than the Doctrine and Discipline of the Church The first under Henry the Fifth and Calixtus the Second which had 300 or according to Bellarmine 900 Bishops and 22 Canons In this Council Burdinus the Anti-Pope was laid aside the vestures with the Ring and Staff were taken from the Emperour and given to the Pope who absolved the Emperour and gave him power of electing German Bishops In this Council there were appointed Crosses for the 〈◊〉 War by means whereof Pardon of Sins might be grant 〈◊〉 them that undertook that War and to their Families The Second Lateran Council was under Lotharius the Emperour and Innocentius the Second which increased to the number of about 2000 Bishops This Council omitted Thirty Canons lately published by Gratian from the Vatican Library which Bellarmine is said to reject It discharged Peter usurping the Roman See after Leo under the name of Anacletus the Second branded for Hereticks Peter of
the best Analogy with the truth comparing one Antiquary with another touching that Subject This Radulphus de Diceto was Dean of London a very Ancient Historian he wrote the History of England from A. 1147. to 1193. in a Book Entituled Imagines Historiarum and in the Prologue to his Chronicle Abbreviations says That Augustine who by Pope Gregory was sent into England An. 600. after he had Converted Ethelbert King of Kent to the Christian Faith went in the year 602. to Arles where he was Consecrated Episcopus Anglorum by Etherius Archbishop of that place and being returned into Britain sent Laurentius the Presbyter and Petrus the Monk to Pope Gregory giving him an account of Britains being converted to the Faith and himself made Bishop thereof Whereupon the said Gregory sent them back into England and with them several Divines to preach the Gospel in this Isle among which the Chief were Mellitus Justus Paulinus and Ruffinianus by whom he also sent the Pall to Augustine and at the same time wrote him in what manner he should Constitute Bishops in England and that in haec verba viz. Per locos singulos 12 Episcopos ordines qui tuae subjaceant ditioni◠quatenus Lundoniensis Civitatis Episcopus semper in posterum à Synodo propria debeat Consecrari c. Ad Eboricum vero Civitatem te volumus Episcopum mittere quem ipse judicaveris Ordinare Ita duntaxat ut si eadem Civitas cum finitimis locis Verhum Dei receperit ipse quoque 12. Episcopos ordinet Metropolitani honore fruatur Quem tamen tuae Fraternitatis volumus dispositioni subjacere Post obitum vero tuum ita Episcopus quos ordinaverit praesit ut Lundoniensis Episcopi nullo modo ditioni subjaceat Sit vero inter Lundoni Eboricae Civitatis Episcopos in posterum honoris ista Distinctio ut ipse prior habeatur qui prius fuerit Ordinatus Tua vero Fraternitas Episcopos quos ordinaveris qui vel per Episcopum Eboracae fuerint Ordinati Sacerdotes etiam totius Britanniae Subjectos habeat After the receipt of these Orders from Pope Gregory the Bishops of Britain were conven'd to a Conference by Augustine he having first Ordained the said Laurentius as his Suffragan the said Mellitus Bishop of London and the said Justus Bishop of Rochester About which time King Ethelbert built St. Pauls Church London or re-edified the same About this time also it was viz. An. 608. that Pope Boniface obtain'd of the Emperour Phocas That the Church of Rome should be the Head of all other Churches That of Constantinople having till then assumed that Title the which was after Decreed sub Anathemate in a Council of 62 Bishops Afterwards the the said Laurentius Mellitus and Justus became Archbishops of Canterbury successively viz. Laurentius in An. 615. Mellitus in An. 622. and Justus in An. 626. according to the computation of the said Radulphus by the last of which Paulinus was Ordained Archbishop of York and to which Justus Pope Boniface wrote in haec verba viz. Authoritati beati Petri praecipientes firmamus ut in Dorobernia Civitate semper in posterum Metropolitanus totius Britanniae locus habeatur omnesque Provinciae Regni Anglorum praefati loci Metropolitanae Ecclesiae subjiciantur Again the precedency of the See of Canterbury is recorded by the said Rodolphus in these words viz. Sicut Cantia subjicitur Romae quod ex ea fidem accepit ita Eboricum subjicitur Cantuariae quae eo Praedicatores misit Sicut igitur sedes Cantuariae prima fuit in fide prima sit in honore After Justus Honorius was made Archbishop of Canterbury whom Paulinus consecrated at Lincoln to whom Honorius Pope wrote in haec verba viz. Cum Dorobernensis Antistes vel Eboracensis de hac vita transierit is qui superest habeat potestatem alterum ordinandi Bed lib. 2. cap. 16. Si de Consecrationibus Archiepiscoporum Cantuar. contrarium aliquid inveneris in Authentico Libro quam in hoc volumine reperiatur adquiescam in omnibus And in the year 632. Pope Honorius wrote unto Honorius Archbishop of Canterbury in these words viz. Tuae Jurisdictioni subjici praecipimus omnes Angliae Ecclesias Regiones ut in Civitate Dorobernia Metropolitanus Locus honor Archiepiscopatus Caput omnium Ecclesiarum Anglorum semper in posterum servetur That the Archiepiscopal Seat at York is likewise of very great Antiquity is evident by what is forementioned touching Paulinus Archbishop thereof above one Thousand years since Our Learned Antiquary tells us Ex Patriis Scriptoribus That York was adorned with an Episcopal Seat by Constantius But if so or if that be the truth which is recorded of Paulinus aforesaid how then could Faganus sent hither by Pope Eleut herius to King Lucius to plant the Christian Religion be as reported the first Archbishop thereof or how could King Lucius place there one Theodosius which yet is also affirmed Or how could Sampson under the same King be Bishop of York as appears by Godwin who yet suspects it in regard that at the first entertainment of Christianity among us nor Hebrew nor Greek Names of the New Testament were so rise among the Britains and indeed this Sampson is more generally reserved to some Ages after till King Arthurs time Thus the Original of things as aforesaid seems full of obscurity and uncertainty yet it is most probable that the first Bishop of York was not till Constantines days and we shall find this Bishop at Arles in the Council there held about the year 314. whither as himself writes in his Epistle to Chrestus Bishop of Syracuse he summoned to hear the Cause of the Donatists many Bishops from divers places In the last Edition of this Council published by Jacobus Sirmondus at Paris among other Subscriptions thereunto you have out of Britain these following viz. Eborius Episcopus de Civitate Eboracensi Provincia Britannia Restitutus Episcopus de Civitate Londinensi Provincia superscripta Adelphus Episcopus de Civitate Colonia Londinensium exinde Sacerdos Presbyter Arminius Diaconus From which Council at Arles it may be observed 1 That York was no Archbishoprick at that time as neithet indeed was Rome it self 2 That Eborius Bishop of York at this Council takes place of Restitutus Bishop of London where as some suppose the Primacy alwaies remained till translated to Canterbury Whether Constantine the Great who is supposed to have adorned York with an Episcopal Seat as aforesaid were Born there and not elsewhere as some conceive is not easily at least not expresly proved out of the Ancients says a Learned Antiquary of Late times yet says he That Authority seems to be drawn from them which the Embassadours of England made use of and that in the hearing of the Learned World then both at the Council of Constance An. 1414. as also at that of Basil An. 1431. At the Council of
of a Bishop may not be without the consent of the Dean yet this we find upon Record nigh as Ancient as the former That where at present there was no Dean there the Election of the Bishop hath been by the Canons alone Canonici Saresbirienses Decanum non habentes ad praesens à Rege prius impetrata Licentia Fratrem suum Concanonicum Herebertum Cantuariensem Archidiaconum Assensu Communi solemniter in Episcopum Elegerunt Electionem factam in Publico recitavit Walterus Praecentor Electioni factae praebuit Rex Assensum quam Hubertus Cantuariensis Archiepiscopus Auctoritate propria Confirmavit c. Consonant to which method is the Act of Parliament made in the 25. of H. 8. whereby it is Enacted That on the vacancy of every Bishoprick his Majesty should issue out his Writ of Congé d'Eslire to the Dean and Chapter of the Church so vacant enabling them to proceed to Election of another Bishop which Election being returned by the said Dean and Chapter and ratified by the Royal Assent his Majesty should issue out his Writ to the Metropolitan to proceed to the Confirmation of the party Elected and taking to himself two other Bishops at least to proceed to Consecration in case he had not before been Consecrated Bishop of some other Church The place of Consecration of Bishops was anciently at Canterbury as the Mother-Church not only of that Province but of all England For when in the time of R. 1. An. 1192. a Bishop of Worcester Elect was to be Consecrated and Westminster the place design'd for that solemnity according to the Popes Command it was opposed by the Prior and Covent of Christ-Church in Canterbury and at a time when the Archbishop thereof whose presence could not but have strengthned that opposition was absent yet the said Prior insisting on the Priviledges and Customes of the Church of Canterbury opposed the said place of Consecration as appears by his Letter to the Bishop of Ely the Popes Legate and other Bishops of that Province in haec verba Reverendis in Christo Dominis Fratribus W. Dei gratia Heliensi Episcopo Apostolicae sedis Legato Domini Regis Cancellario caeterisque Episcopis Cantuariensis Ecclesiae Suffraganeis O. Prior Conventus Ecclesiae Christi Cantuariae salutem ab Auctore salutis Noverit Sanctitas vestra Nos ad sedem Apostolicam appellasse ne Wigorniensis Electus alias quam in Ecclesia Cantuariensi sicut moris est Consecretur ne quis vestrum qui indemnitati Ecclesiae Cantuariensis vinculo Professionis providere tenemini alias quam in eadem Ecclesi◠ejus Consecationi interesse praesumat And at a Synod held at Westminster under P. Honorius 2. in the Reign of H. 1. An. 1126. it was Ordained That at the Consecration of Bishops nothing should by way of Offerings be exacted or by force required Statuimus Apostolica Authoritate Decernimus ut in Consecrationibus Episcoporum c. nil omnino per violentiam nisi sponte oblatum fuerit penitus exigatur Simeon Dunelm Hist de Gest Reg. Angl. The like you have Decreed at another Synod held also at Westminster under P. Innocent 2. in King Stephens Reign An. 1138. Apostolica authoritate Sancimus ut in Consecrationibus Episcoporum ne quicquam ab Episcopo vel Ministris ejus exigatur Hist Richard Prioris Hagustald de Gest Reg. Steph. In the year 1123. which was in the Reign of H. 1. at the Council of Three hundred Bishops conven'd at Rome P. Calixtus 2. being President it was Decreed That no Bishop should be Consecrated unless he were first Canonically Elected Nullus in Episcopum nisi Canonice Electum Consecret quod etsi praesumptum fuerit Consecratus Consecrator absque recuperationis spe deponatur dict Sim. Dunelm Hist As that Canon was not in being so the matter thereby ordained in all probability was far from being observed when Plegmundus Archbishop of Canterbury whom P. Formosus honoured with the Pall Consecrated no less than Seven Bishops in one day in the two and twentieth year of King Alured Chron. Johan Bromton Abbatis Jornalensis When a Bishop is Consecrated then may he Consecrate viz. Churches c. and may Ordain Deacons c. But it was long since provided by the Council of Lateran under P. Alexander That the Bishop should not confer Holy Orders on any that were not then or speedily to be provided with an Ecclesiastical Living Episcopus si aliquem sine certo Titulo de quo Necessaria vitae percipiat in Diaconum vel Presbyterum Ordinaverit tam diu ei necessaria subministret donec ei in aliqua Ecclesia Convenientia stipendia militiae clericalis assignet nisi talis forte qui Ordinatur extiterit qui de sua vel paterna haereditate subsidium vitae possit habere Can. 9. And as touching the Bishops Consecrating of Churches it being vulgarly supposed that there is a considerable piece of Superstition therein it cannot but be seasonable here to enquire whether so or no or whether the Consecration of Churches be not truly Primitive according to the Judgment of the Learned Dr. Heylin To which purpose you have here his very words viz. The place of Publick Worship is called generally according to the style of the Ancient Fathers by the name of the Church For Consecrating or setting apart whereof to Religious uses I find says he so great Authority in the Primitive times as will sufficiently free it from the guilt of Popery Witness the Testimony which Pope Pius gives of his Sister Eutorepia in an Epistle to Justus Viennensis An. 158. or thereabouts for setting apart her own House for the use and service of the Church Witness the Testimony which Metaphrastes gives of Felix the First touching his Consecrating of the House of Cicilia about the year 272. And that which Damasus gives unto Marcellinus who succeeded Felix for Consecrating the House of Lucinia for Religions uses Witness the famous Consecration of the Temple of the Holy Martyrs in Jerusalem Founded by Constantine the Great at which almost all the Bishops in the Eastern parts were summoned and called together by the Emperours Writ and finally not to descend to the following Times witness the 89th Sermon of St. Ambrose entituled De Dedicatione Basilicae Preached at the Dedication of a Church built by Vitalianus and Maianus and the Invitation of Paulinus another Bishop of that Age made by Sulpitius Severus his especial Friend Ad Basilicam quae prorexerat in Nomine Domini consummabitur Dedicandum to be present at the Dedication of a Church of his Foundation Heyl. Cyprian Angl. p. 12. The Decree of Faith made by the Council of Trent was attended with no less than Eight Anathematisms the first whereof was against him that shall say that there is no visible Priesthood in the New Testament nor any power to Consecrate c. For in the beginning of that Decree it is affirmed That there is a visible and
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
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 King Kanute made for the indemnity of such as should have recourse to Tribunals for their safe coming and going to and from Courts of Justice Et volo ut omnis homo pacem habeat eundo ad gemotum vel rediens de gemoto id est placito nifi fit fur probatus It is a word from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 convenire unde Nostratium to meet But this digression the Reader must put on the Abbots score in regard the word Abbates gave the occasion thereof which may be but a Venial offence in regard that that Ecclesiastical Dignity is with us laid aside though their Possessions had better Fortune yet when King H. 8. did dissolve them he did not only augment the number of Colledges out of the Revenues thereof but also erected divers new Bishopricks as at Westminster Oxford Peterborough Bristol Chester and Glocester all remaining at this day save that at Westminster which being restored to its pristine Institution by Queen Mary and Benedictines placed therein was after by Queen Elizabeth converted to a Collegiate Church In this Chapter there is mention also made of Chauntries Cantaria or if you please Aedes Sacra ideo Instituta Dotata Praediis ut missa ibidem Cantaretur pro anima Fundatoris propinquorum ejus Ita Spelm. Of these and Free Chappels about 2374. were dissolved by King H. 8. to whom they were given by Parliament in the 38th year of his Reign The Religious Houses under 200 l. per An. were granted to him in An. 1535. All greater Monasteries in An. 1538. The Chantery and Free Chappels in An. 1545. Of these Chanteries Forty seven belonged unto St. Pauls London And as for Annates or First-Fruits it is Historically reported to us that they were first introduced into England in the time of King Edward the First by Pope Clement who succeeded Benedict For this Pope Clement after the death of Pope Benedict was no sooner Elected and Enthron'd in France but he began to exercise his new Rapines here in England by a compliance with the said King Edward in granting him a Two years Disme from his Clergy for his own use though pretended for the aid of the Holy Laud that with the more ease himself might exact the First Frutts of vacant Ecclesiastical Benefices to augment his own Revenues though not within his own Territories This is said to be the first President of any Popes reserving or exacting Annates or First-Fruits of all Ecclesiastical Dignities and Benefices throughout England extant in our Histories which though reserved but for Two years by the Pope at first yet afterwards grew into a Custome by degrees both in England and elsewhere And thus they remained in the Pope until an Act of Parliament entituled the Crown thereunto in the time of King Henry the Eighth which afterwards were restored again to the Pope by Queen Mary but in the first year of Queen Elizabeth an Act pass'd for restoring the Tenths and First-Fruits to the Crown Notwithstanding what some Historians have as aforesaid reported touching the first introduction of First-Fruits into England by Pope Clement in the time of King Edward the First it is most evident that they were to be yielded and paid here in England some hundreds of years before that time as appears by the Laws of Ina King of the West Saxons who began his Reign in the year 712. The Law was this viz. Primitias seminum quisque ex eo dato domicilio in quo ipso Natali die Domini commoratur Lambert de Leg. Inae Reg. And by the Laws of King Edgar who began his Reign in the year 959. it is Ordained in these words Ex omni quidem ingeniorum terra ipsae Seminum Primitiae primariae penduntor Ecclesiae Idem de Leg. Edgari Reg. Ipsas autem Seminum Primitias sub Festum Divi Martini reddito Ibid. The like you have in the Laws of King Kanute who began his Reign in the year 1016. Seminum Primitiae ad Festum Divi Martini penduntor si quis dare distulerit eas Episcopo undecies praestato ac Regi Ducenos viginti Solidos persolvito Idem Lamb. It is supposed that Boniface Archbishop of Canterbury in the Reign of Ed. 3. was the first that made way for Popes to Appropriate Annates and First-Fruits in this Kingdom to themselves for the said Archbishop An. 1246. upon a feigned pretence that his Church of Canterbury was involved in very great Debts by his Predecessor but in truth by himself to carry on Forein Wars and gratifie the Pope procured from Pope Innocent a grant of the First years Fruits of all Benefices that should fall void within his Diocess for the space of Seven years till he should thence raise the Sum of Ten thousand Marks yearly out of the Bishoprick So that this Grant of First Fruits of Benefices to Boniface the said Archbishop made way for Popes Appropriating First-Fruits and Annates to themselves soon after But in process of time the Parliament having as aforesaid settled them on King H. 8. there was an Office thereof established in London An. 1538. whereby the Kings Revenue increased exceedingly from this Office for the receipt of Tenths and First-Fruits which was then first erected in London such Moneys being formerly paid to the Pope for that the Tenths and First-Fruits of the English Clergy were yearly return'd to Rome But now the Pope being dead in England the King was found his Heir at Common Law as to most of the Power and Profit he had usurped and the Rents which the Clergy paid were now changed together with their Landlord for Commissioners whereof the Bishop of the Diocess was ever one were appointed to estimate their Annual Revenues that so their Tenths and First-Fruits might be proportioned accordingly At this time the Oblations from the Living and Obits from the Dead were as duly paid as Predial Tithes and much advanced the Income but Queen Mary did after by Act of Parliament exonerate the Clergy from all these First-Fruits and ordered the payment of the Tenths to Cardinal Poole for discharge of Pensions allowed to certain Monks and Nuns but Queen Elizabeth in the first year of her Reign resumed these First-Fruits and Tenths only Personages not exceeding ten Marks and Vicarages ten Pounds were freed from First-Fruits vid. Stat. 1 Eliz. cap. 4. That which in the method of the ensuing Treatise next offers it self to consideration is Altarage Altaragium taking its denomination from the Altar because to speak properly Altargium est Emolumentum Sacerdoti provenieus ratione Altaris ex Oblationibus sc vid. Jo. de Athon in Constit. Legatim Otho c. Auditu ver Proventus Touching this Altarage there is an Ancient Record in the time of King H. 3. about the year 1234. in the Chronicle of William Thorne the Augustine Monk of Canterbury whereof among other things there is mention made in a certain Composition between Edmond Archbishop
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
the Convocations of the same Clergy are and always have been and ought to be assembled only by the Kings Writ The Convocation is under the power and Authority of the King 21 E. 3. 45. b. 12. After the Reign of King H. 8. this Supremacy in the Crown was signally exercised by King Ed. 6. styling himself Supream Head under Christ of the Church of England and Ireland in the Preface of his Injunctions given as well to all the Clergy as Laity of this Realm the Close whereof is as followeth viz. All which singular Injunctions the Kings Majesty ministreth unto his Clergy and their Successors and to all his loving Subjects straitly charging and commanding them to observe and keep the same upon pain of Deprivation Sequestration of Fruits or Benefices Suspension Excommunication and such other Coercion as to Ordinaries or others having Ecclesiastical Jurisdiction whom his Majesty hath appointed for the due execution of the same shall be seen convenient Charging and commanding them to see these Injunctions observed and kept of all persons being under their Jurisdiction as they will answer to his Majesty for the contrary And his Majesties pleasure is That every Justice of Peace being required shall assist the Ordinaries and every of them for the due execution of the said Injunctions 14. The Three first Articles to be enquired of at the Visitations within the Province of Canterbury in the second year of the Reign of the said King Edward the Sixth were as followeth viz. 1. Whether Parsons Vicars and Curates and every of them have purely and sincerely without colour or dissimulation four times in the year at the least preached against the Usurped power pretended Authority and Jurisdiction of the Bishop of Rome 2. Whether they have preached and declared likewise four times in the year at least that the Kings Majesties power authority and preheminence within his Realms and Dominions is the highest power under God 3. Whether any person hath by writing cyphring preaching or teaching deed or act obstinately holden and stand with to extol set-forth maintain or defend the authority jurisdiction or power of the Bishop of Rome or of his See heretofore claimed and usurped or by any pretence obstinately or maliciously invented any thing for the extolling of the same or any part thereof Likewise by the Articles of Religion agreed on by the Convocation held in London and published An. 1553. by the Authority of King Ed. 6. it is declared That the King of England is Supream Head in Earth next under Christ of the Church of England c. and that the Bishop of Rome hath no Jurisdiction in this Realm The like you have in the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation held in London An. 1562. and published by the Authority of Queen Elizabeth That the Queens Majesty hath the chief Power in this Realm of England and other her Dominions unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any Forreign Jurisdiction Which Articles being the Articles of the Church of England were afterwards ratified and confirmed by his Majesty King CHARLES I. of ever Blessed Memory by his Royal Declaration thereunto prefixed in which Declaration you have as followeth viz. That we are Supream Governour of the Church of England and that if any difference rise about the External Policy concerning the Injunctions Canons or other Constitutions whatsoever thereto belonging the Clergy in their Convocation is to order and settle them having first obtained leave under our Broad Seal so to do and We approving their said Ordinances and Constitutions provided that none bâ— made contrary to the Laws and Customes of the Land Likewise in the first of the aforesaid Injunctions of King Ed. 6. as also in the first of the Injunctions given by Q. Elizabeth concerning both the Clergy and Laity of this Realm published Ann. 1559. being the first year of her Reign it is enjoyned That all Deans Archdeacons Parsons Vicars and all other Ecclesiastical persons shall faithfully keep and observe c. all and singular Laws and Statutes made for the restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and abolishing of all Forreign power repugnant to the same c. By the Statute of 25 H. 8. c. 19. Appeals to Rome are prohibited and it is Ordained that in default of Justice in any of the Courts of the Archbishops of this Realm it shall be lawful to appeal to the King in his Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is given to the King in Chancery upon Sentences in places exempt in the same manner as was before used to the See of Rome And as by the said Statute there may be an Appeal to the King in Chancery when the Suit is in the Archbishops Court or some Peculiar exempt so in some Cases the Appeal may be to the King generally as he is Supream Head of all Ecclesiastical Jurisdiction within the Realm for by the Statutes made in the time of King Hen. 8. the Crown was only remitted and restored to its Ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. Fitz. Aid del Roy 103. Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Rex est Mixta persona cum Sacerdote Et causa Spiritualis Committi potest Principi Laico Cassan in Catal. glo mund p. 5. Consid 24. The King of England c. is Persona Sacra mixta cum Sacerdote and at his Coronation by a solemn Consecration and Unction becomes a Spiritual person Sacred and Ecclesiastical and then hath tam Vestem Dalmaticam as an emblem of his Royal Priesthood quam Coronam Regni in respect of his Regal power in Temporals and is Supream Governour in all Causes and over all Persons as well Ecclesiastical as Civil The King is Supream Ordinary by the Ancient Common Law of England before the Statute of 24 H. 8. cap. 12. for a Resignation might be made to him he might make a Grant of a Church to a man to hold to his own proper use he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary but also give him Episcopal Jurisdiction he might Present to Free Chappels in default of the Dean by Lapse and that as Ordinary and in respect of his Supream Ecclesiastical Jurisdiction he might dispense with one not lawfully born to be a Priest albeit the Ecclesiastical Laws allowed within this Realm do prohibite it but the reason is for that it is not Malum in se but Malum prohibitum In a word All that the Pope was wont to do in such cases within this Realm as
Secular who within that Province whereof he is Archbishop hath next and immediately under the King Supream power Authority and Jurisdiction in all causes and things Ecclesiastical Of such there are only Two in England one of the Province of Canterbury styled Metropolitanus Primas Totius Angliae the other of York styled Primas Metropolitanus Angliae Under the two Archbishops are twenty six Bishopricks whereof twenty two in the Province of Canterbury and four in the Province of York so that besides the two Archbishops there are twenty four Bishops The Christian Religion in England took root first in the See of Canterbury St. Austin who first preached the Gospel to the one was the first Archbishop of the other Canterbury once the Royal City of the Kings of Kent was by King Ethelbert on his Conversion bestowed on St. Augustine the Archbishop and his Successors for ever and so the Chair thereof became originally fixed in that City of Canterbury Cantuarienses Archiepiscopi Dorovernenses antiquitus dicti sunt quia totius Anglicanae Ecclesiae Primates Metropolitani fuerunt The Archbishop whereof being styled Primate and Metropolitan of all England is the first Peer of the Realm and hath Precedency not only before all the Clergy of the Kingdom of England but also next and immediately after the Blood Royal before all the Nobility of the Realm Sr. Edward Cokâ— says more and lets us to understand That in Ancient time they had great Precedency even before the Brother of the King as appears by the Parliament Roll of 18 E. 1. and many others which continued until it was altered by Ordinance in Parliament in the Reign of H. 6. as appears by a Roll of Parliament of that Kings Reign entred in the Back of the Parliament Roll. The Precedency in Parliament and other Places of Council at this day is That the two Archbishops have the Precedency of all the Lords Temporal and every other Bishop in respect of his Barony hath place of all the Barons of the Realm and under the estate of the Viscount and other Superiour Dignities And at this day in all Acts Ordinances and Judgments c. of Parliament it is said The Lords Spiritual and Temporal The Bishops among themselves have this Precedency 1. The Bishop of London 2. The Bishop of Duresme 3. The Bishop of Winchester The Archbishop of Canterbury as he hath the Precedency of all the Nobility so also of all the great Officers of State He writes himself Divina Providentia whereas other Bishops only use Divina Permissione The Coronation of the Kings of England belongs to the Archbishop of Canterbury and it hath been formerly resolved that wheresoever the Court was the King and Queen were Speciales Domestici Parochiani Domini Archiepiscopi He had also heretofore this Priviledge of special remark That such as held â—ands of him were liable for Wardship to him and to compound with him for the same albeit they held other Lands in chief of our Sovereign Lord the King All the Bishopricks in England except Duresme Carlisle Chester and the Isle of Man which are of the Province of York are within the Province of Canterbury The Archbishop whereof hath also a peculiar Jurisdiction in thirteen Parishes within the City of London and in other Diocesses c. Having also an Ancient Priviledge That wherever any Mannors or Advowsons do belong to his See they forthwith become exempt from the Ordinary and are reputed Peculiars and of his Diocess of Canterbury If you consider Canterbury as the Seat of the Metropolitan it hath under it twenty one Suffragan Bishops whereof seventeen in England and four in Wales But if you consider it as the Seat of a Diocesan so it comprehends only some part of Kent viz. 257 Parishes the residue being in the Diocess of Rochester together with some other Parishes dispersedly scituate in several Diocesses it being as aforesaid an Ancient Priviledge of this See that the places where the Archbishop hath any Mannors or Advowsons are thereby exempted from the Ordinary and are become Peculiars of the Diocess of Canterbury properly belonging to the Jurisdiction of the Archbishop of Canterbury whose Provincial Dean is the Bishop of London whose Chancellour is the Bishop of Winchester whose Vice-Chancellour anciently was the Bishop of Lincoln whose Precentor the Bishop of Salisbury whose Chaplain the Bishop of Worcester and the Bishop of Rochester when time was carried the Cross before him Lind. Const de Poenis gl ibid. c. 1. ver tanquam 2. The Metropolitan See of York had its Original at the first reception of the Gospel in England when King Lucius established Sampson the first Archbishop thereof Not long after the Conversion of the Saxons Paulinus by Pope Gregory's appointment was made Archbishop thereof An. 622. This Province of York anciently claimed and had a Metropolitan Jurisdiction over all the Bishops of Scotland whence they had their Consecration and to which they swore Canonical Obedience The Archbishop of York styles himself Primate and Metropolitan of England as the Archbishop of Canterbury Primate and Metropolitan of All England About two hundred years since viz. An. 1466. when George Nevil was Archbishop of York the Bishops of Scotland withdrew themselves from their obedience to him and had Archbishops of their own The Archbishop of York hath precedency before all Dukes not being of the Blood Royal as also before all the Great Officers of State except the Lord Chancellour Of this Province of York are the Bishopricks of Duresme Chester Carlisle and the Isle of Man who write themselves Eboracenses or Eborum The Diocess belonging to this See of York contains the two Counties of York and Notingham and in them 581 Parishes whereof 336 are Impropriations 3. It hath been question'd whether there be any difference between Archbishop and Metropolitan the DD. herein seem to be divided some conceiving that there is some difference between them others affirming that they are both one the Canon Law seems in a sense to favour each of these Opinions saying in one place that the Archbishop as President hath the charge and oversight of the Metropolitans and other Bishops 21. Dist Cleros In another place That Archbishop and Metropolitan are but one and the same in deed and in truth although they differ in Name Wilhel in Clem. ult de Privileg verb. Archiepiscopo vers fin Metropolitanus Archiepiscopus idem sunt Sed Metropolitanus nomen trahit à numero Ecclesiarum viz. à metro mensura polis Civitas Otho glo in verb. Archiepiscopus De Offic. Archiepisc He is called Archiepiscopus quasi Princeps Episcoporum in respect of the other Bishops whereof he is chief and Metropolitanus in respect of the number of the Cities or Cathedral Churches where the Bishopricks are Lindw ubi supr gl ib. ver Metropolitanum For the word Civitas doth signifie with us as it doth in other Kingdoms such a Town
which in the days of King Lucius was an Archbishoprick as aforesaid till St. Augustine in the year 598 took on him the Title of Archbishop of England setling his See at Canterbury 8. Upon the abrogating of the Popes power in England by King H. 8. in the Seventh year of his Reign it was concluded that the Archbishop of Canterbury should no more be styled the Popes Legate but Primate and Metropolitan of all England at which time Tho. Cranmer Fellow of Jesus-Colledge in Cambridge who pronounced the Divorce from Queen Katharine of Spain upon his advice given the King to leave the Court of Rome and to require the Opinions of Learned Divines being then in Germany procured such favour with the King that he caused him to be elected to this See of Canterbury and was afterwards with the then Bishop of Duresme made Tutor to King Edward the Sixth 9. The Archbishop of Canterbury was supposed to have had a concurrent Jurisdiction in the inferiour Diocesses within his Province which is not denied in the case of Dr. James only it is there said That was not as he was Archbishop but as he was Legatus Natus to the Pope as indeed so hâ— was before the tâ—me of King H. 8. as aforesaid by whom that Power together with the Pope was abrogated and so it ceased which the Archbishop of York never had nor ever claimed as appears in the forecited Case where it is further said That when there is a Controversie between the Archbishop and a Bishop touching Jurisdiction or between other Spiritual Persons the King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and that is a right of his Crown to distribute to them that is to declare their Bounds Consonant to that which is asserted in a Case of Commendam in Colt and Glovers Case against the Bishop of Coventry and Lichâ—ield where it is declared by the Lord Hobart Chief Justice That the King hath an immediate personal originary inherent Power which he executes or may execute Authoritate Regia Suprema Ecclesiastica as King and Sovereign Governour of the Church of England which is one of those Flowers qui faciunt Coronam which makes the Royal Crown and Diadem in force and vertue The Archbishop of Canterbury as he is Primate over All England and Metropolitan hath a Supereminency and some power even over the Archbishop of York hath under the King power to summon him to a National Synod and Archiepiscopus Eboracensis venire debet cum Episcopis suis ad nutum ejusâ— ut ejus Canonicis dispositionibus Obediens existat Yet the Archbishop of York had anciently not only divers Bishopricks in the North of England under his Province but for a long time all the Bishopricks of Scotland until little more than 200 years since and until Pope Sixtus the Fourth An. 1470. created the Bishop of St. Andrews Archbishop and Metropolitan of all Scotland He was also Legatus Natus and had the Legantine Office and Authority annexed to that Archbishoprick he hath the Honour to Crown the Queen and to be her perpetual Chaplain Of the forementioned Diocesses of his Province the Bishop of Durham hath a peculiar Jurisdiction and in many things is wholly exempt from the Jurisdiction of the Archbishop of York who hath notwithstanding divers Priviledges within his Province which the Archbishop of Canterbury hath within his own Province 10. The Archbishop is the Ordinary of the whole Province yet it is clear That by the Canon Law he may not as Metropolitan exercise his Jurisdiction over the Subjects of his Suffragan Bishops but in certain Cases specially allowed in the Law whereof Hostiensis enumerates one and twenty The Jurisdiction of the Archbishop is opened sometimes by himself nolente Ordinario as in the Case of his Visitation and sometimes by the party in default of Justice in the Ordinary as by Appeal or Nullities Again it may sometimes be opened by the Ordinary himself without the party or Archbishop as where the Ordinary sends the Cause to the Archbishop for although the Canon Law restrains the Archbishop to call Causes from the Ordinary Nolente Ordinario save in the said 21 Cases yet the Law left it in the absolute power of the Ordinary to send the Cause to the Archbishop absolutely at his will without assigning any special reason and the Ordinary may consult with the Archbishop at his pleasure without limitation Notwithstanding which and albeit the Archbishop be Judge of the whole Province tamen Jurisdictio sua est signata non aperitur nisi ex causis Nor is the Subject hereby to be put to any such trouble as is a Grievance and therefore the Law provides that Neminem oportet exire de Provincia ad Provinciam vel de Civitate ad Civitatem nisi ad Relationem Judicis ita ut Actor forum Rei sequatur 11. If the Archbishop visit his Inferiour Bishop and Inhibit him during the Visitation if the Bishop hath a title to Collate to a Benefice within his Diocess by reason of Lapse yet he cannot Institute his Clerk but he ought to be presented to the Archbishop and he is to Institute him by reason that during the Inhibition his power of Jurisdiction is suspended It was a point on a special Verdict in the County of Lincoln and the Civilians who argued thereon seemed to agree therein but the Case was argued upon another point and that was not resolved Likewise by the Statute of 25 H. 8. c. 21. the Archbishop of Canterbury hath power to give Faculties and Dispensations whereby he can as to Plurality sufficiently now Dispense de jure as Anciently the Pope did in this Realm de facto before the making of that Statute whereby it is enacted That all Licenses and Dispensations not repugnant to the Law of God which heretofore were sued for in the Court of Rome should be hereafter granted by the Archbishop of Canterbury and his Successors 12. By the Constitutions and Canons Ecclesiastical Edit 1603. Can. 94. It is Ordained That no Dean of the Arches nor Official of the Archbishops Consistory shall originally Cite or Summon any person which dwelleth not within the particular Diocess or Peculiar of the said Archbishop c. without the License of the Diocesan first had and obtained in that behalf other than in such particular Cases only as are expresly excepted and reserved in and by the Statute of 23 H. 8. c. 9. on pain of suspension for three months In the Case of Lynche against Porter for a Prohibition upon the said Statute of 23 H. 8. c. 9. it was declared by the Civilians in Court That they used to Cite any Inhabitant of and in London to appear and make Answer in the Archbishop of Canterbury's high Court of Arches originally And Dr. Martyn said It had been so used for the space of 427 years before the making of the Statute and upon
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 â—ands 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 Viâ—its 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 supra and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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—
as Deacons and Curates in places appointed 2. Under this Name or Appellation of Bishops are contained Bishops Primates Metropolitans Patriarchs and Summus Pontifex Dist 21. c. 1. And the Presbyters also C. Legimus § 1. Dist 93. Spec. de Instr Edit Sect. 14. vers de Episcopo and for such commonly used and taken in the New Testament l. 14. c. de Episc Cler. In some Acts of Parliament we find the Bishop to be called Ordinary and so taken at the Common Law as having Ordinary Jurisdiction in Causes Ecclesiastical albeit in the Civil Law whence that word Ordinarius is taken it signifies any Judge authorized to take Cognizance of Causes proprio suo jure as he is a Magistrate and not by way of Deputation or Delegation The word Ordinary doth chiefly take place in a Bishop and other Superiours who alone are Universal in their Jurisdictions yet under this word are comprized also other Ordinaries viz. such as to whom Ordinary Jurisdiction doth of right belong whether by Priviledge or by Custome Lindw de Constit c. Exterior ver Ordinarii The Pallium Episcopale or Bishops Pall mentioned as Sr. Ed. Coke observes in some Statutes and many Records and Histories is a Hood of white Wool to be worn as Doctors Hoods upon the Shouldiers with Four Crosses woven into it c. for the Form and Colours whereof vid. Antiq. Brit. Eccles fo 1. This Pallium Episcopale is the Arms belonging to the See of Canterbury vid. Cassan de glo mun p. 4. fo 103. a. 26. Consid ubi multa Legas de Pallio Henry Dean the 65th Archbishop of Canterbury An. 1502. had Pallium Archiepiscopatus Insigne sent him from Pope Alexander 6. by his Secretary Adrian which by the Bishop of Lichfield and Coventry Authorized thereto by the Pope was presented him at Lambeth in these words viz. Ad honorem Dei Omnipotentis c. Tibi tradimus Pallium de Corpore beati Petri sumptum plenitudinem videlicet Pontificalis Officii c. whereupon he swore Canonical obedience to the Apostolical See of Rome 3. The Kings of England were Anciently the Founders of all the Archbishopricks and Bishopricks in this Realm and also in Wales the Bishops thereof were Originally of the Foundation of the Princes of Wales Bishops in England originally were Donative per traditionem Baculi Pastoralis Annuli until King John by his Charter granted that they should be Eligible Chart. 25. Jan. An. Reg. 17. De Commuâ—i Consensu Baronum after which came in the Congé d'Eslire And at this day the Bishopricks in Ireland are Donative Rolls 342. The Patronage of all Bishopricks is in the King so as that he gives leave to the Chapters to chuse them In Ancient times the King gave the Bishopricks and then afterwards gave leave to the Chapters to chuse them as aforesaid The learned Serjeant Roll in that part of his Abridgment touching this Subject makes mention of 1 E. 1. Rot. Clauso Memb. 11. in dorso where there is this Protestation made by the King Cum Ecclesia Cathedralis viduatur de jure debeat soleat de Consuetudine provideri per Electionem Canonicam ab ejusmodi potissimum Celebrandam Collegiis Capitulis personis ad quos jus pertinet petita tamen prius ab Illustri Rege Angliae super hoc Licentia obtenta demum Celebrata Electione persona Electa eidem Regi habeat Praesentari ut idem Rex contra personam ipsam possit proponere si quid rationabile habeat contra eum And the Protestation goes further That in case the Pope makes Provision without such Canonical Election the King shall not be obliged to give him his Temporalties yet of grace for the time present he give the Temporalties to the Abbot Elect of Canterbury Thus the Election of Bishops by Deans and Chapters began by the grant of the King but the Grant was to Elect after License first had and obtained as appears by the Stat. of 25 Ed. 3. Stat. de Provisoribus Rastal 325 d. And King John was the first that granted it by his Charter dated 15 Jan. An. 16. William Rufus K. after the Archbishop of Canterbury's death kept the See without an Archbishop for the space of four years and then assum'd divers other Ecclesiastical Promotions into his own hands that were then vacant putting to Sale divers Rights and Revenues of the Church But King H. 1. made a Law against Reservations of Ecclesiastical Possessions upon Vacancies In the time of Edward the Confessor the Prelates used to receive Investitute from the King by giving them the Pastoral Staff and a Ring And so it was used in the time of H. 1. but Suffragans were invested only by the Ring without the Staff for that they are not Bishops so fully and compleatly as the other 4. To the Creation of Bishops are requisite Election Confirmation Consecration and Investiture Upon the vavancy of a See the King grants his License under his Great Seal to the Dean and Chapter of such vacant Cathedral to proceed to an Election of such a person as by his Letters Missive he shall nominate and appoint to succeed in such vacant Archbishoprick or Bishoprick which Election must be within twenty days next after their receiving such License or Letters Missive upon failure whereof they run the danger of a Praemunire Or if above twelve days after their receipt thereof the Election be deferr'd the King may by his Letters Patent nominate or present to such vacant Bishoprick to the Archbishop or Metropolitan of that Province wherein such See is void or unto one Archbishop and two other Bishops or to four such Bishops as his Majesty shall think fit in case upon such Nomination or Presentment by the King the default of Election by the Dean and Chapter be to the Office and Dignity of a Bishop Otherwise if they Elect according to his Majesties pleasure in his Letters Missive the Election is good and upon their Certificate thereof unto his Majesty under their Common Seal the person so Elected is reputed and called Lord Bishop Elect yet is he not thereby compleat Bishop to all intents and purposes for as yet he hath not Potestationem Jurisdictionis neque Ordinis nor can have the same untill his Confirmation and Consecration for which Reason it is that if after such Election and before Consecration a Writ of Right be brought in the Court of a Mannor belonging to such Bishoprick it is not directed Episcopo but Ballivis of the Bishop Elect. The order of making a Bishop consists chiefly in these Eight things viz. 1. Nomination 2. Congé d'Eslire 3. Election 4. Royal Assent 5. Confirmation 6. Creation 7. Consecration 8. Installation Vid. Grendon's Case in Plowd Trin. 17 Jac. B. R. Sobrean Teige vers Kevan Roll. Rep. par 2. The Creation of a Bishop is in this Solemn
manner viz. The Bishops See being vacant the Dean and Chapter of that Cathedral gives notice thereof to the King humbly requesting his Majesty's leave to chuse another the King grants his Congé d'Eslire Thereupon the Dean summons a Chapter they elect the person recommended by his Majesties Letters that Election after a first or second modest refusal being accepted by the party elected is certified to the King and to the Archbishop of that Province hereupon the King grants his Royal Assent under his Great Seal exhibited to the said Archbishop with Command to Confirm and Consecrate him upon this the Archbishop subscribes his Fiat Confirmatio withal giving Commission under his Archiepiscopal Seal to his Vicar-General to perform all the Acts requisite for perfecting his Confirmation Hereupon the Vicar-General in the Archbishops name issues a Citation summoning all Opposeâ—s of the said Election to make their appearance at a certain time and place then and there to offer their Objections if they have any This done by an Officer of the High-Court of Arches usually at Bow-Church London by Proclamation thrice and affixing the said Citation on that Church-door an Authentick Certificate thereof is by the said Officer returned to the said Archbishop and Vicar-General At the time and place aforesaid the Proctor for the said Dean and Chapter exhibits the Royal Assent and the Commission of the Archbishop to the Vicar-General who after the reading thereof accepts the same Then the Proctor exhibits the Proxy from the Dean and Chapter presents the elected Bishop returns the Citation and desires that the Opposers may be thrice publickly called which done and their Contumacy accused desires that in poenam Contumaciae the business in hand may proceed which the Vicar-General in a Schedule by him read and subscribed doth order Then the Proctor gives a Summary Petition therein deducing the whole Process of Election and Consent and desires a time may be assign'd him to prove it which the Vicar-General admits and decrees After this the Proctor exhibits the Royal Assent again with the elected Bishops Assent and the said Certificate to the Archbishop desiring a time to be presently assigned for Final Sentence which the Vicar-General decrees Then the Proctor desires that all Opposers may again be thrice publickly called which done and none appearing nor opposing they are pronounced Contumacious and a Decree made to proceed to Sentence by a Schedule read and subscribed by the Vicar-General Whereupon the Bishop elect takes the Oaths of Supremacy Simony and Canonical Obedience After this the Dean of the Arches reads and subscribes the Sentence Next after the Confirmation follows the Consecration of the elected Bishop according to the Kings Mandate which is solemnly done by the Archbishop with the assistance of two other Bishops according to the approved Rights and Ceremonies of the Church of England and in conformity to the manner and Form of Consecrating Bishops according to the Rule laid down in the Fourth Council of Carthage about the year 470 generally received in all the Provinces of the Western Church After the Premises there issues a Mandate from the Archbishop to the Archdeacon of his Province to install the Bishop Elected Confirmed and Consecrated who or his Proxy which is usual being in presence of a Publick Notary introduced into the Cathedral Church on any day between the hours of 9 and 11 by the said Archdeacon doth first declare his assent to the Kings Supremacy c. Then the Archdeacon with the Canons c. having accompanied the Bishop to the Quire and placed him in the Episcopal Seat doth pronounce as followeth viz. Ego authoritate mihi Commissa Induco Inthroâ—izo Reverendum in Christo Patrem Dominum J. S. Episcopum Et Dominus custodiat suum introitum exitum ex hoc nunc in saeculum c. Then after the Divine Service proper for the occasion the Bishop being conducted into the Chapter-house and there placed on a high Seat the Archdeacon and all the Prebends c. of the Church acknowledge Canonical Obedience to him And the Publick Notary by the Archdeacons command records the whole matter of Fact in this Affair in an Instrument to remain as Authentick to Posterity After all which the Bishop is introduced into the Kings presence to do his Homage for his Temporalties or Barony by kneeling down and putting his hands between the hands of the King sitting in his Chair of State and by taking a solemn Oath to be true and faithful to his Majesty and that he holds his Temporalties of Him When Matth. Parker in the second year of Queen Eliz. 1559. elected to the Archbishoprick of Canterbury had his Confirmation in the Court of Arches according to the usual form in that behalf This being performed an entertainment for the Vicar General the Dean of the Arches and other Officers of that Court whose presence was requisite at this Solemnity was provided at the Nagâ—head Tavern in Cheapside Lond. whereby occasion was taken by the Roman Adversaries maliciously to report That the Nagshead Tavern was the place of Consecration Heyl. The form or manner of making a Bishop and of translating him from one Bishoprick to another differs only in this that in the latter there needs no Consecration And the translation of a Bishop to an Archbishoprick differs only in the Commission which is directed by his Majesty to four or more Bishops to Confirm him 5. Each Archbishop every Bishop and their Officials have their Seals of Office respectively which being affixed to a writing makes the Instrument Authentick whereby the use and practice of Tabellions or Publick Notaries as in Forreign parts is with us much abated For that of a Tabellion allowed by Authority to Engross and Register private Contracts and Obligations his Office in some Countries did formerly differ from that of a publick Notary but now they are as one and the same Office Quoniam Tabellionum usus in Regno Angliae proper quod magis ad Sigilla Authentica credi est necesse ut â—orum facilius habeatur Statuimus ut Sigillum habeant non solum Archiepiscopi Episcopi sed eorum Officiales And all Bishops Ordinaries Archdcacons and all others exercising any Ecclesiastical Jurisdiction ought to have the Kings Arms engraven on their Seal of Office but the Archbishop of Canterbury may use his own Seal And all Process Ecclesiastical and Certificates into any Court of Record are to be in the Kings name Teste the Bishop But as to the making admitting ordering and reforming of Chancellors Commissaries Officials Advocates Proctors and other Officers Ministers and Substitutes This the Bishops may do in their own Names and under their own Seals 6. If one be Elected and the Temporalties granted to him yet he is not Bishop before Consecration 41 E. 3. 6. 46 E. 3. 32. Quaere For he may refuse to be Bishop after Election and before Consecration but not after 41 E. 3. 5. b. When upon
vacancy of a Bishoprick the Dean and Chapter by virtue of his Majesties License under the Great Seal of England hath proceeded to the Election of a new Bishop in pursuance of and according to his Majesties Letters Missive on that behalf and Certificate thereof made unto the Kings Majesty under their Common Seal then follows the Confirmation Consecration and Investiture by the Archbishop or Metropolitan of that Province wherein such Bishoprick was void the said Election having upon such elected Bishops Oath of Fealty to the Kings Majesty been first signified to the Archbishop by the King under his Great Seal whereby the said Archbishop is required to Confirm the said Election and to Consecrate and Invest the person Elected And now he is compleat Bishop as well unto Temporalties as Spiritualties yet after his Confirmation and before his Consecration the King may if he please ex gratia grant him the Temporalties But after his Consecration Investiture and Instalment he is qualified to sue for his Temporalties out of the Kings hands by the Writ de Restitutione Temporalium And yet it seems the Temporalties are not de jure to be delivered to him until the Metropolitan hath certified the time of his Consecration although the Freehold thereof be in him by his very Consecration But if during the Vacation of Archbishopricks or Bishopricks and while their Temporalties are in the Kings hands the Freehold-Tenants of Archbishops or Bishops happen to be attainted of Felony the King by his Prerogative hath the Escheats of such Freeholders-Lands to dispose thereof at his pleasure saving to such Prelates the Service that is thereto due and accustomed Before the Conquest the Principality of Wales was held of the King of England and by the Rebellion and forfeiture of the Prince the Principality came to the King of England whereby the Bishopricks were annexed to the Crown and the King grants them their Temporalties 10 H. 4. 6. 7. The manner of making a Bishop is fully described in Evans and Kiffin's Case against Askwith wherein it was agreed That when a Bishop dies or is Translated the Dean and Chapter certifie the King thereof in Chancery and pray leave of the King to make Election Then the King gives his Congé d'Esâ—ire whereupon they make their Election and first certifie the same to the party Elect and have his consent Then they certifie it to the King in Chanceâ—y also they certifie it to the Archbishop and then the King by his Letters Patents gives his Royal Assent and commands the Archbishop to Confirm and Consecrate him and to do all other things necessary thereunto whereupon the Archbishop examines the Election and the Ability of the party and thereupon confirms the Election and after Consecrates him according to the usage upon a New Creation And upon a Translation all the said Ceremonies are observed saving the Consecration which is not in that case requisite for that he was Consecrated before 8. Bishopricks were Donatives by the King till the time of W. Rufus and so until the time of King John Read for that the History of Eadmerus Vid. Case Evans vers Ascouth in â—in Caâ— Noy 's Rep. It hath been generally held That before the Conquest and after till the time of King John Bishops were Invested by the King per Baculum Annulum but King John by his Charter granted That there should be a Canonical Election with Three Restrictions 1. That leave be first asked of the King 2. His Assent afterwards 3. That he shall have the Temporalties during the Vacation of the Bishoprick whereof mention is made in the Stat. of 25 Ed. 3. de Provisoribus and which is confirmed by the Stat. of 13 R. 2. c. 2. Also the Law in general is positive therein That in the making of all Bishops it shall be by Election and the Kings Assent and by the 25 H. 8. the Statute for Consecration of Bishops makes it more certain And if the Pope after the said Charter did use to make any Translation upon a Postulation without Election and Assent of the King it was but an Usurpation and contrary to the Law and restrained by 16 R. 2. and 9 H. 4. 8. And after the 25 H. 8. it was never used to have a Bishop by Postulation or any Translation of him but by Election as the said Statute prescribes And the form of making a Bishop at this day is after the same manner as aforesaid and according to the said Statute 9. The Interest and Authority which a Bishop Elect hath is That he is Episcopus Nominis non Ordinis neque Jurisdictionis But by his Confirmation he hath Potestatem Jurisdictionis as to Excommunicate and Certifie the same 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease But after Election and Confirmation he hath Potestatem Ordinationis for then he may Consecrate confer Orders c. For a Bishop hath Three Powers 1. Ordinis which he hath by Consecration whereby he may take the Resignation of a Church confer Orders consecrate Churches And this doth not appertain to him quatenus Bishop of this or that place but is universal over the whole World So the Archbishop of Spalato when he was here conferr'd Orders 2. Jurisdictionis which is not Universal but limited to a place and confin'd to his See This power he hath upon his Confirmation 3. Administratio rei familiaris as the Government of his Revenue and this also he hath upon his Confirmation The Bishop acts either by his Episcopal Order or by his Episcopal Jurisdiction By the former he Ordains Deacons and Priests Dedicates or Consecrates Churches Chappels and Churchyards administers Confirmation c. By the latter he acts as an Ecclesiastical Judge in matters Spiritual by his Power either Ordinary or Delegated 10. An. 1430. Temp. Reg. H. 6. Hen. Chicheley Archiepisc Cant. in Synodo Constitutum est Ne quis Jurisdictionem Ecclesiasticam exerceret nisi Juris Civilis aut Canonici gradum aliquem ab Oxoniâ—nsi vel Cantabrigiensi Academia accepisset Ant. Brit. fo 284. nu 40. The power of the Bishop and Archbishop is derived from the Crown as was held in Walkers Case against Lamb where it was also held That the Grant of a Commissary or Official to one was good notwithstanding he were a Lay man and not a Doctor of Law but only a Batchelour of Law for the Court then said That the Jurisdiction of the Bishop and Archdeacon is derived from the Crown by usage and prescription and that in it self as it is coercive to punish Crimes or to determine Matrimonial Causes and Probate of Testaments and granting of Administrations being Civil Causes are derived from the Crown and not incident de mero jure to the Bishop which appears by Henslows Case par 9. Cawdry's Case par 5. 1 Ed. 6. c. 2. the Stat. of 37 H. 8. and divers other Authorities and the Statute of 37 H. 8. c.
17. is to that purpose 11. In former times many Bishops had their Suffragans who were also Consecrated as other Bishops were These in the absence of the Bishops upon Embassies or in multiplicity of business did supply their places in matter of Orders but not in Jurisdiction These were chiefly for the ease of the Bishops in the multiplicity of their Affairs ordained in the Primitive times called Chorepiscopi Suffragan or Subsidiary Bishops or Bishops Suffragans and were Titular Bishops Consecrated by the Archbishop of the Province and to execute such Power and Authority and receive such profits as were limited in their Commissions by the Bishops or Diocosans whose Suffragans they were What Towns or Places to be the Sees of Bishops Suffragans and how many to a Diocess and in what Diocesses appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop or some other Bishop desire the same In which case the Bishop presents Two able persons for any place allowed by the said Act of Parliament whereof his Majesty doth chuse one but at present there are no Suffragan Bishops in England They were no other than the Chorepiscopi of the Primitive Times Subsidiary Bishops ordained for easing the Diocesan of some part of his burthen as aforesaid by means whereof they were enabled to perform such Offices belonging to that Sacred Function not limited to time and place by the ancient Canons by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper Diocess Of these there were twenty six in the Realm of England distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination The Names and Number whereof together with the Jurisdiction and preheminences proportioned to them the Reader may peruse in the Act of Parliament made An. 26 H. 8. 12. According to the Temporal Laws of this Land if a Bishop grant Letters of Institution under any other Seal than his Seal of Office and albeit it be out of his Diocess yet it is good For in Cort's Case against the Bishop of St. Davids and others where the Plaintiff offered in evidence Letters of Institution which appeared to be sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there and which Letters were made also out of the Diocess It was held That they were good enough albeit they were sealed with another Seal and made out of the Diocess for that the Seal is not material it being an Act made of the Institution And the writing and sealing is but a Testimonial thereof which may be under any Seal or in any place But of that point they would advise 13. A Bishop if he celebrate Divine Service in any Church of his Diocess may require the Offerings of that day He may sequester if the King present not and 12 H. 8. 8. by Pollard he must see the Cure served if the person fail at his own Costs He may commit Administration where Executors being called refuse to prove the Will He hath power of distribution and disposing of Seats and charges of Repairs of the Churches within his Diocess He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other but if he will chuse the Clerk of either at his peril he ought at his peril to receive him that hath Right by the Statute He may License Physicians Chirurgions Schoolmasters and Midwives He may Collate by Lapse He may take competent time to examine the sufficiency and fitness of a Clerk He may give convenient time to persons interested to take notice of Avoidances He is discharged against the true Patron and quit of Disturbance to whom it cannot be imputed if he receive that Clerk that is in pursuance of a Verdict after Inquest in a Jure Patronatus He may have Six Chaplains and every Archbishop may have Eight Chaplains He may unite and consolidate small Parishes and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure joyn and associate himself to the Justices of Oyer and Terminer or to the Justices of Assize at the open and general Sessions to be holden at any place within his Diocess in Causes of the Church And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly and is commonly styled the Ordinary of that Diocess where he doth exercise his Episcopal Authority and Jurisdiction In Parliament Bishops as Barons may be present and Vote at the Trial and Arraignment of a Peer only before Sentence of death or loss of Member be pronounced that they may have no hand in blood in any kind they have by Canon Law the Priviledge and Injunction to absent themselves and by Common Law to make Proxies to vote for them 14. ORDINARY according to the acceptation of the Common Law with us is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical immediate to the King He is in Common understanding the Bishop of the Diocess who is the Supervisor and for the most part Visitor of all his Churches within his Diocess and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his Diocess in jure proprio non per deputationem and therefore it is his care to see that the Church be provided of an able Curate Habet enim Curam Curarum and may execute the Laws of the Church by Ecclesiastical Censures and to him alone are made all Presentations to Churches vacant within his Diocess Ordinarius habet locum principaliter in Episcopo aliis Superioribus qui soli sunt Vniversales in suis Jurisdictionibus sed sunt sub eo alii Ordinarii hi videlicet quibus Competit Jurisdictio Ordinaria de jure privilegio vel consuetudine Lindw cap. Exterior tit de Constitutionib 15. The Jurisdiction of the Ordinary or Bishop as to the Examination of the Clerk or as to the Admission or Institution of him into a Benefice is not Local but it follows the person of the Ordinary or Bishop wheresoever he is And therefore if a Clerk be presented to the Bishop of Norwich to a Church which is void within the Diocess of Norwich who is then in London or if it be to a Bishop of Ireland who is then in England and in London the Ordinary may examine the Clerk or give him Admission or Institution in London And so it was adjudged 16. The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first for as he
next in precedency hath been a Count Palatine about six or seven hundred years and hath at this day the Earldom of Sadberg long since annexed to this Bishoprick by the King Note a President hath been shewed at Common Law That the Bishop of Durham imprisoned one for a Lay-Cause and the Archbishop of York as his Sovereign cited him to appear before him to answer for that Imprisonment and the Archbishop was fined four thousand Marks Cro. par 1. The Bishop of Winchester was anciently reputed Earl of Southampton All the other Bishops take place according to the Seniority of their Consecration unless any Bishop happen to be made Lord Chancellor Treasurer Privy Seal or Secretary of State which anciently was very usual All the Bishops of England are Barons and Peers of the Realm have place in the Upper house of Parliament as also in the Upper house of Convocation The Bishopricks were erected into Baronies by William the Conqueror at his coming into England And as a special remark of Honour Three Kings viz. of England Scotland and South-Wales in the year 1200. did contribute their Royal shoulders for the conveyance of the deceased Corps of Hugh Bishop of Lincoln to his Grave And no wonder when Princes themselves and such as were of the Blood Royal were anciently Bishops in this Kingdom they have been not only of the best Nobility but divers of the Sons and Brothers of several English Kings since the Conquest and before have entred into Holy Orders and became Ecclesiasticks as at this day is practicable in the most of all other Monarchies throughout the whole Christian World Ethelwolph Son and Successor to Egbert first Sole King of England was in Holy Orders and Bishop of Winchester at his Fathers death Odo Brother to William the Conqueror was Bishop of Bayeux in Normandy Henry de Blois Brother to King Stephen was Bishop of Winchester Geofry Plantagenet Son to King Henry the Second was Bishop of Lincoln And Henry de Beauford Brother to King Henry the Fourth was Bishop also of Winchester 20. The Statute of 17 Car. 1. cap. 27. for disinabling persons in Holy Orders to exercise Temporal Jurisdiction or Authority being Repealed as aforesaid by the Statute of 13 Car. 2. cap. 2. they are thereby restored to the exercise of Temporal Jurisdiction as formerly which indeed is no more than what they ever Anciently exercised in this Kingdom For Ex Clero Rex semper sibi eligebat Primos à Consiliis Primos ad Officia Regni obeunda Primi igitur sedebant in omnibus Regni Comitiis Tribunalibus Episcopi in Regali quidem Palatio cum Regni Magnatibus in Comitatu una cum Comite in Turno cum Vice-comite in Hundredo cum Domino Hundredi sic ut in promovenda Justitia usquequaque gladii gladium adjuvaret nihil inconsulto Sacerdote vel Episcopo ageretur This Union of Persons Authority and Courts of Judicature Ecclesiastical and Civil as Mr. Selden proves continued above Four thousand years till Pope Nicholas the First about the Eighth Century to exclude the Emperour from medling in the Ecclesiastical Government began to exclude the Clergy from medling with the Civil And for the space of four or five hundred years during the Reign of the Saxon Kings in England the Ecclesiastical and Secular Magistrates sate joyntly together determining Ecclesiastical Affairs in the Morning and Secular or Civil Affairs in the Afternoon so that in those days as there was no clashing of Jurisdictions so no complaint touching Prohibitions but an unanimous harmony in a kind of Joynt-Jurisdiction in reference to all Ecclesiastical and Civil Affairs until William the Conqueror did put a distinction between Church and State in a more divided way than formerly had been practiced Also the excellent Laws made by King Ina King Athelstan King Edmund and St. Edward the Confessor from whom we have our Common Laws and our Priviledges mentioned in Magna Charta were all made by the perswasions and advice of Archbishops and Bishops named in our Histories 21. That which during the Reign of King Edw. 6. made the greatest alteration and threatned most danger to the State Ecclesiastical was the Act entituled An Act for Election and what Seals and Styles shall be used by Spiritual persons c. In which it was ordained That Bishops should be made by the Kings Letters Patents and not by the Election of the Deans and Chapters That all their Processes and Writings should be made in the Kings Name only with the Bishop's Teste added to it and sealed with no other Seal than the Kings or such as should be Authorized and Appointed by him In the compounding of which Act there was more danger as Dr. Heylin observes couched than at first appeared For by the last Branch thereof it was plain and evident says he that the intent of the Contrivers was by degrees to weaken the Authority of the Episcopal Order by forcing them from their strong hold of Divine Institution and making them no other than the Kings Ministers only or as it were his Ecclesiastical Sheriffs to execute his Will and disperse his Mandates And of this Act such use was made though possibly beyond the true intention of it that as the said Dr. Heylin observes the Bishops of those Times were not in a Capacity of conferring Orders but as they were thereunto impowred by special License The Tenour whereof if Sanders be to be believed was in these words following viz. The King to such a Bishop Greeting Whereas all and all manner of Jurisdiction as well Ecclesiastical as Civil flows from the King as from the Supream Head of all the Body c. We therefore give and grant to thee full power and License to continue during our good pleasure for holding Ordination within thy Diocess of N. and for promoting fit persons unto Holy Orders even to that of the Priesthood Which being looked on by Queen Mary not only as a dangerous diminution of the Episcopal Power but as an odious Innovation in the Church of Christ she caused this Act to be Repealed in the first year of her Reign leaving the Bishops to depend on their former claim and to act all things which belonged to their Jurisdiction in their own Names and under their own Seals as in former times In which estate they have continued without any Legal Interruption from that time to this But says the same Author in the First Branch there was somewhat more than what appeared at the first sight For though it seemed to aim at nothing but that the Bishops should depend wholly on the King for their preferment to those great and eminent places yet the true drift of the Design was to make Deans and Chapters useless for the time to come and thereby to prepare them for a Dissolution For had nothing else been intended in it but that the King should have the sole Nomination of all the Bishops in his Kingdoms it had
been only a reviver of an Ancient power which had been formerly invested in his Predecessors and in all other Christian Princes If we consult the Records of elder Times it will readily appear not only that the Roman Emperours of the House of France did Nominate the Popes themselves but that after they had lost that power they retained the Nomination of the Bishops in their own Dominions The like done also by the German Emperours by the Kings of England and by the Ancient Kings of Spain The Investure being then performed per Annulum Baculum that is by delivering of a Ring together with a Crosier or Pastoral Staff to the party nominated 22. By Ancient Right the Bishops of London are accounted Deans of the Episcopal Colledge and being such are by their place to signifie the pleasure of their Metropolitan to all the Bishops of the Province to execute his Mandates and disperse his Missives on all emergency of Affairs As also to preside in Convocations or Provincial Synods during the vacancy of the See or in the necessary absence of the Metropolitan 23. In O Brian and Knivan's Case the Case was That King Ed. 6. under his Privy Seal signified to Sir J. C. and to the Lord Chancellor and others in Ireland That he elected and appointed J. B. to be Bishop of Ossory Requiring them to Instal him in the Bishoprick The Deputy being removed the Chancellor and the other made a Commission under the Great Seal of Ireland to the Bishop of Dublin to Consecrate him which was done accordingly and he did his Fealty and recovered the Temporalties out of the Kings hands Afterwards in the life of J. B. Queen Mary elected J. T. to be Bishop there who was likewis◠Consecrated and who made a Lease of divers Lands of the Bishoprick for 101 years which was confirmed by the Dean and Chapter J. B. died and after J. T. died J. W. was elected Bishop The Questions in the Case were 1. Whether J. B. was well created Bishop 2. Whether this Lease made by J. T. being Bishop de facto but not de jure in the life of J. B. he surviving J. B. should be good to bind the Successor Resolved The Commission was well executed although the Deputy Sir J. C. were removed 2. Resolved That before the Statute of 2 Eliz. the King might by Patent without a Writ of Congé d'eslire create a Bishop for that was but a Form or Ceremony 3. Resolved That although J. T. was Bishop de facto in the life of J. B. that the Lease made by him for 101 years was void though it was confirmed by the Dean and Chapter and should not bind the Successor But all Judicial Acts made by him as Admissions Institutions c. should be good but not such voluntary Acts as tended to the depauperation of the Successor A Bishop made a Lease for three Lives not warranted by the Statute of 1 Eliz. rendring Rent the Successor accepted the Rent It was Resolved It should bind him during his time so as he shall not avoid the Lease which otherwise was voidable CHAP. IV. Of the Guardian of the Spiritualties 1. What the Office of such a Guardian is and by whom Constituted 2. The power of such Guardians in vacancy of Archbishopricks 3. What Remedy in case they refuse to grant such Licenses or Dispensations as are legally grantable 4. Who is Guardian of the Spiritualties of Common Right 5. What things a Guardian of the Spiritualties may do 1. GVardian of the Spiritualties Custos Spiritualium vel Spiritualitatis is he to whom the Spiritual Jurisdiction of any Diocess during the vacancy of the See is committed Dr. Cowell conceives that the Guardian of the Spiritualties may be either Guardian in Law or Jure Magistratus as the Archbishop is of any Diocess within his Province or Guardian by Delegation as he whom the Archbishop or Vicar General doth for the time depute Guardian of c. by the Canon Law pertains to the Appointment of the Dean and Chapter c. ad abolend Extr. Nè sede vacante aliquid innovetur But with us in England to the Archbishop of the Province by Prescription Howbeit according to Mr. Gwin in the Preface to his Readings divers Deans and Chapters do challenge this by Ancient Charters from the Kings of this Realm Cowell verb. Custos This Ecclesiastical Office is specially in request and indeed necessarily in the time of the Vacancy of the Episcopal See or when the Bishop is in remotis agendis about the publick Affairs of the King or State at which time Presentations must be made to the Guardian of the Spiritualties which commonly is the Dean and Chapter or unto the Vicar General who supplies the place and room of the Bishop And therefore if a man Recover and have Judgment for him in a Quare Impedit and afterwards the Bishop who is the Ordinary dieth In this case the Writ to admit the Clerk to the Benefice must be directed to the Guardian of the Spiritualties Sede vacante to give him Admission But if before his Admission another be created Bishop of that See and Consecrated Bishop in that case the power of the Guardian of the Spiritualties doth cease and the party may have a new Writ to the new Bishop to admit his Clerk A Guardian of the Spiritualties may admit a Clerk but he cannot confirm a Lease 2. The Guardian of the Spiritualties takes place as well in the vacancy of Archbishopricks as Bishopricks and hath power of granting Licenses Dispensations and the like during such Vacancies by the Statute of 25 H. 8. whereby it is provided and enacted That if it happen the See of the Archbishop of Canterbury to be void that then all such Licenses Dispensations Faculties Instruments Rescripts and other Writings which may be granted by virtue of the said Act shall during such vacation of the said See be had done and granted under the Name and Seal of the Guardian of the Spiritualties of the said Archbishoprick according to the tenor and form of the said Act and shall be of like force value and effect as if they had been granted under the Name and Seal of the Archbishop for the time being Where it is also further enacted 3. That if the said Guardian of the Spiritualties shall refuse to grant such Licenses Dispensations Faculties c. to any person that ought upon a good just and reasonable cause to have the same then and in such case the Lord Chancellor of England or the Lord Keeper of the Great Seal upon any complaint thereof made may direct the Kings Writ to the said Guardian of the Spiritualties during such Vacancy as aforesaid refusing to grant such Licenses c. enjoyning him by the said Writ under a certain penalty therein limited at the discretion of the said Lord Chancellor or Lord Keeper that he shall in due form grant such License Dispensation Faculty
c. according to the request of the Procurers of the same or signifie into Chancery by a day certain for what cause he refused to grant the same where if upon such Certificate it shall appear that the cause of such Refusal was reasonable just and good that then it shall be admitted and allowed otherwise there may issue thence by virtue of the said Statute a Writ of Injunction commanding the said Guardian of the Spiritualties so refusing as aforesaid to make sufficient grant of such License Dispensation c. by a certain day and if after the receipt of such Writ the Guardian of the Spiritualties shall yet refuse to grant the same and shew no just or reasonable cause for so doing that then and in such case the said Guardian of the Spiritualties shall incur such penalty to his Majesty as shall be limited and expressed in the said Writ of Injunction And moreover in such case a Commission under the Great Seal may issue to Two Spiritual Prelates or persons to be nominated by his Majesty Authorizing them to grant such Licenses Faculties and Dispensations as were so refused to be granted by the Guardian of the Spiritualties as aforesaid And what in this case is here enjoyn'd to the Guardian of the Spiritualties during the vacancy of the Archbishoprick is likewise expresly by the said Statute to the Archbishop himself in time of Plenarty or Non-vacancy of the See 4. Of the Metropolitan the Dean and Chapter is of Common right the Guardian of the Spiritualties Of Inferiour Bishopricks in times of Vacation the Dean and Chapter of the See is of Common right the Guardian of the Spiritualties and not the Metropolitan Yet 5 E. 2. Quare impedit 165. Admit that during the vacancy of the Bishoprick of Durham the Archbishop of York is Guardian of the Spiritualties And 23 E. 1. Rot. Claus Memb. 4. the Prior of Christ-Church in Canterbury was Guardian of the Spiritualties in time of vacation of the Archbishoprick Of which Archbishoprick the Dean and Chapter is Guardian of the Spiritualties in the time of vacancy Also of the Archbishoprick of York the Dean and Chapter is Guardian of the Spiritualties in the vacancy thereof and not the Archbishop of Canterbury for that it is a distinct Province not subordinate to c. contra 31 H. 6. 10. Admit for there a Parson of the Province of York had aid of the Metropolitan Guardian of the Spiritualties of the Archbishoprick of York in time of vacancy of that Archbishoprick In the Case of Grange against Denny it was said by Coke That of common Right by the Common Law the Dean and Chapter Sede vacante of the Bishop is Guardian of the Spiritualties as appears by Pasch 17 E. 3. fo 23. but that now the Archbishops have used to have this by way of Composition And in the same Case it was said by Doderidge That every Archbishop hath a Diocess and a Province and of his Diocess he is a Bishop and of his Province he is Archbishop and within his Province he is to be Visitor of all the Churches within his Province and Sede vacante of any Bishop within his Province he himself is Guardian of the Spiritualties of all the Bishopricks within his Province but Sede vacante of his own Diocess the Dean and Chapter of this is Guardian of the Spiritualties and that no mention is made in the Books of the Common Law of any such Composition aforesaid but that the Guardian of the Spiritualties is to be according to the difference before put between a Province and a Diocess 5. The Learned Serjeant Roll in his Abridgment doth acquaint us out of the Ancient Books That a Guardian of the Spiritualties may Admit and Institute a Clerk presented to him That the King did present to the Guardian of the Spiritualties of the Archbishoprick of Dublin Sede vacante for a Church in Ireland That the Guardian of the Spiritualties may try Bastardy That Letters were directed to all the Bishops and in the Vacancy to the Guardian of the Spiritualties to make Prayers for the King in his Journey in France And that the Prior of Christ-Church in Canterbury Guardian of the Spiritualties during the Vacancy of that Archbishoprick had a Felon delivered to him But in the time of the Vacancy of the Bishop the Archbishop is Guardian of the Spiritualties and not the Dean and Chapter CHAP. V. Of Congé d'Eslire Election and Confirmation 1. What Congé d'Eslire signifies the Original thereof 2. To whom it is directed and the manner of Proceedings thereupon and of Election 3. Confirmation of Bishops the form or manner thereof 4. Confirmation in a Temporal not Spiritual sense what 5. The Confirmation of Bishops Elect beyond Sea far different from this in England 6. The Law and Practice in France touching the making of Bishops 1. COngé d'Eslire in French Leave to Chuse is the Kings permission to a Dean and Chapter to chuse a Bishop in the time of Vacancy And time was when this Venia Eligendi was also the permission Royal to an Abby or Priory of his own Foundation to chuse their Abbot or Prior But we now understand it under no other signification than as his Majesties leave vouchsafed to a Dean and Chapter to elect a certain person to succeed as Bishop of that Diocess whose Episcopal See is vacant For the better interpretation of this Congé d'Eslire the Modern Pens refer themselves to Mr. Guin in the Preface to his Readings where he saith The the King of England as Sovereign Patron of all Archbishopricks Bishopricks and other Ecclesiastical Benefices had of Ancient time free Appointment of all Ecclesiastical Dignities whensoever they hapned to be void Investing them first Per Baculum Annulum and afterwards by his Letters Patents And that in process of time he made the Election over to others under certain Forms and Conditions viz. That they should at every Vacation before they chuse desire of the King Congé d'Eslire that is Leave or License to proceed to Election and then after the Election to crave the Royal Assent c. He affirmeth also by good proof out of the Books of the Common Law that King John was the first that granted this and that afterwards it was confirmed by Westminster 1. cap. 1. which Statute was made An. 3. Ed. 1. And again by the Statute Articuli Cleri cap. 2. which was Ordained An. 25. Ed. 3. Stat. 3. it is generally agreed That the Kings of this Realm were originally the Founders of all Archbishopricks and Bishopricks within this Kingdom being at first Donative per traditionem Baculi Pastoralis Annuli But afterwards King John by his Chapter 15 Jan. in the seventh year of his Reign De Communi consensu Baronum granted that they should ever after be eligible And from that time came in the Congé d'Eslire Vid. Co. 5. par 14. in Candry's Case vid. Stat.
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 〈◊〉 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 began Bishops to be Consecrated It is a kind of Separation of persons Ecâ—csiastical 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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
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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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
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
Office supposing the Grant of that by the Predecessor does not bind the Successor as it was in Dr. Barker's Case there a Prohibition shall be awarded because the profits are Temporal But we in the first Case cannot try the Sufficiency Vid. 8 E. 3. 70. 9 E. 3. 11. So it is if the Ordinary deprive the Master of a Lay-Hospital for there he is not a Visitor nor is it Visitable by him But otherwise of a Spiritual Hospital 20. The Bishop of Landaff granted the office of his Chancellorship to Dr. Trevor and one Griffin to be exercised by them either joyntly or severally Dr. Trevor for 350 l. released all his Right in the said Office to Griffin so that G. was the sole Officer and then after died After this the Bishop grants the said Chancellorship to R. being a Practicioner in the Civil Law for his life Dr. Trevor surmising that himself was the sole Officer by Survivorship made Dr. Lloyd his Substitute to execute the said office for him and for that that he was disturbed by R. the said Dr. Trevor being Substitute to the Judge of the Arches granted an Inhibition to inhibite the said R. from executing the said Office The Libel contained That one R. hindered and disturbed Dr. Lloyd so that he could not execute the said Office Against these proceedings in the Arches a Prohibition was prayed and day given to Dr. Trevor to shew cause why it should not be granted They urged that the Office was Spiritual for which reason the discussing of the Right thereof appertaineth to the Ecclesiastical Courts But all the Judges agreed That though the Office was Spiritual as to the Exercising thereof yet as to the Right thereof it was Temporal and shall be tryed at the Common Law for the party hath a Freehold therein Vid. 4 5 P. M Dyer 152. 9. Hunt's Case for the Registers Office in the Admiralty and an Assize brought for that And so the Chief Justice said was Adjudged for the Registers Office to the Bishop of Norwich in B. R. between Skinner and Mingey which ought to be tryed at the Common Law And so Blackleech's Case as Warburton said in this Court for the office of Chancellor to the Bishop of Gloucester which was all one with the principal Case And they said That the office of Chancellor is within the Statute of Ed. 6. for buying of Offices c. And so in the manner of Tithing the Prescription is Temporal for which cause it shall be tryed at Common Law And Prohibition was granted according to the first Rule So that if a Bishop grant the office of Chancellorship to A. and B. and after A. release to B. and after B. die and after the Bishop grant it to R. against whom A. sues in the Ecclesiastical Court supposing his Release to be void a Prohibition will lie for that the office is Temporal as to the Right of it though the office be Exercised about Spiritual matters But if a Chancellor be sued in the Ecclesiastical Court to be deprived for Insufficiency as not having knowledge of the Canon Law no Prohibition lies for that they are there the proper Judges of his ability and not the Judges of the Common Law 21. In Dr. Trevor's Case who was Chancellor of a Bishop in Wales it was Resolved That the Offices of Chancellor and Register c. in Ecclesiastical Courts are within the Statute of 5 Ed. 6. cap. 16. which Act being made for avoiding Corruption of Officers c. and advancement of Worthy persons shall be expounded most beneficially to suppress Corruption And because it allows Ecclesiastical Courts to proceed in Blasphemy Heresie Schism c. Loyalty of Matrimonies Probat of Wills c. And that from these proceedings depends not only the Salvation of Souls but also the Legitimation of Issues c. and other things of great consequence It is more reason that such Officers shall be within the Statute than Officers which concern Temporal matters The Temporal Judge committing the Convict only to the Gaoler but the Spiritual Judge by Excommunication Diabolo And there is a Proviso in the Statute for them And it was Resolved That such Offices were within the Purview of the said Statute CHAP. XI Of Courts Ecclesiastical and their Jurisdiction 1. The Antiquity of the Ecclesiastical Laws of England and what the Chief Ecclesiastical Courts are in general anciently called Halimots The Original of the Popes Vsurpation in England 2. The Court of Convocation and Constitutions of Claringdon 3. The High Court of Arches why so called the highest Consistory the Jurisdiction thereof 4. The Judge of this Court whence called Dean of the Arches 5. The great Antiquity of this Court the Number of Advocates and Proctors thereof Anciently limited their decent Order in Court 6. The Prerogative Court of Canterbury 7. The Court of Audience to whom it belonged where kept and what matters it took cognizance of 8. The Court of Faculties why so called what things properly belong to this Court As Dispensations Licenses c. with the Original thereof in England 9 What the nature of a Dispensation is and who qualified to grant it 10. A Dean made Bishop the King may dispence with him to hold the Deanary with the Bishoprick by way of Commendam 11. Whether a Prohibition lies to the Ecclesiastical Courts in case they do not allow of Proof by one Witness 12. Divers Cases at the Common Law relating to Prohibitions to the Ecclesiastical Courts 13. The Court of Delegates 14. The High Commission Court what the Power thereof was 15. The Court of Review or Ad Revidendum 16. The Court of Peculiars 17. In what Cases the Ecclesiastical Court shall have Jurisdiction of matters Subsequent having Jurisdiction of the Original Suit 18. In what Case the party having allowed of the Jurisdiction comes too late to have a Prohibition 19. The difference between a Suit Ad instantiam partis and that ex Officio Judicis in reference to a General Pardon 20. Whether a Cleâ—k may strike his Servant or another in that case the Clerk and be blameless 21. What manner of Avoidance shall be tried at the Common Law and what in the Ecclesiastical Court 22. In what Case a special Prohibition was awarded in a Suit of Tithes after a Definitive Sentence 23. A Prohibition to the Ecclesiastical Court in a Suit grounded on a Custome against Law 24. Prohibition awarded to the Ecclesiastical Court upon refusal there to give a Copy of the Libel 25. Where the Ecclesiastical Court hath cognizance of the Principal they have also of the Accessory though the Accessory of matters Temporal 26. A Prohibition denied upon a Suggestion That the Ecclesiastical Court would not admit of proof by one Witness 27. In what case the Ecclesiastical Court shall have the Cognizance albeit the bounds of a Village in a Parish come in question 28. How the Practice hath been touching Prohibitions where the Subject matter
the Bishoprick of Winchester contra novi Concilii statuta as the same Author reporteth And this because succeeding Popes had broken Pope Vrban's promise Touching the not sending of Legates into England unless the King should require it And in the time of the next succeeding King Stephen the Pope gained Appeals to the Court of Rome For in a Synod at London Conven'd by Hen. Bishop of Winchester the Pope's Legate it was Decreed That Appeals should be made from Provincial Councils to the Pope Before which time Appellationes in usu non erant saith a Monk of that time donec Henricus Winton Episcopus malo suo dum Legatus esset crudeliter intrusit Thus did the Pope usurp Three main points of Jurisdiction upon Three several Kings after the Conquest for of King William Rufus he could win nothing viz. upon the Conquerour the sending of Legates or Commissioners to hear and determine Ecclesiastical Causes Upon Hen. 1. the Donation and Investures of Bishopricks and other Benefices and upon King Stephen the Appeals to the Court of Rome And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power 2. The high Court of Convocation is called the Convocation of the Clergy and is the highest Court Ecclesiastical where the whole Clergy of both Provinces are either present in Person or by their Representatives They commonly meet and sit in Parliament-time consisting of Two parts viz. the Upper-house where the Archbishops and Bishops do sit and the Lower-house where the Inferiour Clergy do sit This Court hath the Legislative power of making Ecclesiastical Laws is commonly called a National Synod Conven'd by the King 's Writ directed to the Archbishop of each Province for summoning all Bishops Deans Archdeacons Cathedrals and Collegiate Churches assigning them the time and place in the said Writ But one Proctor sent for each Cathedral and Collegiate Church and two for the Body of the inferiour Clergy of each Diocess may suffice The higher House of Convocation or the House of Lords Spiritual for the Province of Canterbury consists of 22 Bishops whereof the Archbishop is President the Lower-house or House of Commons Spiritual consisting of all the Deans Archdeacons one Proctor for every Chapter and two for the Clergy of each Diocess in all 166 persons viz. 22 Deans 24 Prebendaries 54 Archdeacons and 44 Clerks representing the Diocesan Clergy Both Houses debate and transact only such matters as his Majesty by Commission alloweth concerning Religion and the Church All the Members of both Houses of Convocation have the same priviledges for themselves and Menial Servants as the Members of Parliament have The Archbishop of York at the same time and in the like manner holds a Convocation of all his Province at York constantly corresponding debating and concluding the same matters with the Provincial Synod of Canterbury The Antiquity of this Court of Convocation is very great for according to Beda St. Augustine An. 686. assembled in Council the Britain Bishops and held a great Synod The Clergy was never assembled or called together at a Convocation by other Authority than by the King 's Writ Vid. Parl. 18 E. 3. nu 1. Inter Leges Inae An. Dom. 727. A Convocation of the Clergy called Magna servorum Dei frequentia The Jurisdiction of the Convocation is only touching matters meerly Spiritual and Ecclesiastical wherein they proceed juxta Legem Divinam Canones Sanctae Ecclesiae The Lord Coke cites some Ancient Records to prove that the Court of Convocation did not meddle with any thing concerning the Kings Temporal Laws of the Land and thence inferrs That the Statute of 25 H. 8. cap. 19. whereby it is provided That no Canons Constitution or Ordinance should be made or put in execution within this Realm by Authority of the Convocation of the Clergy which were contrariant or repugnant to the King's Prerogative Royal or the Customes Laws and Statutes of this Realm is but declaratory of the old Common Law And by the said Act the Court of Convocation as to the making of new Canons is to have the King's License as also his Royal Assent for the putting the same in execution But towards the end of that Act there is an express Proviso that such Canons as were made before that Act which be not contrariant nor repugnant to the King's Prerogative the Laws Statutes or Customes of the Realm should be still used and executed as they were before the making of that Act. And if any Cause shall depend in contention in any Ecclesiastical Court which shall or may touch the King his Heirs or Successors the party grieved shall or may appeal to the Upper-house of Convocation within fifteen days after Sentence given Remarkable are the Constitutions of Claringdon in the time of King H. 2. occasioned by the Popes claiming Exemption of Clerks from the Secular power so contended for by Thomas Becket then Archbishop of Canterbury against the King as occasioned a convening a Common Council as well of the Bishops as of the Nobility at Claringdon in the time of H. 2. wherein they revived and re-established the Ancient Laws and Customes of the Kingdom for the Government of the Clergy and ordering of Causes Ecclesiastical The principal Heads or Articles whereof were these viz. 1 That no Bishop or Clerk should depart the Realm without the King's License and that such as obtained License should give Sureties That they should not procure any dammage to the King or Realm during their absence in Foreign parts 2 That all Bishopricks and Abbies being void should remain in the Kings hands as his own Demesns until he had chosen and appointed a Prelate thereunto and that every such Prelate should do his Homage to the King before he be admitted to the place 3 That Appeals should be made in Causes Ecclesiastical in this manner viz. From the Archdeacon to the Ordinary from the Ordinary to the Metropolitan from him to the King and no farther 4 That Peter-Pence should be paid no more to the Pope but to the King 5 That if any Clerk should commit Felony he should be hanged if Treason he should be drawn and quartered 6 That it should be adjudged High Treason to bring in Bulls of Excommunication whereby the Realm should be cursed 7 That no Decree should be brought from the Pope to be executed in England upon pain of Imprisonment and Confiscation of Goods 3. Arches or alma Curia de Arcubus so called of Bow-Church in London by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise in which Church this Court was ever wont to be held being the chief and most Ancient Court and Consistory of the Jurisdiction of the Archbishop of Canterbury which Parish of Bow together with twelve others in London whereof Bow is the chief are within the Peculiar Jurisdiction of the said Archbishop in Spiritual Causes and
exempts the Bishop from the Jurisdiction of his Metropolitan And for that the Cardinal fell into a Praemunire for which he purchased his Pardon which is sound among the Charters 4 H. 6. in Archivis Turr Lond. 6 7 Eliz. Dyer 233. a. Jo. Packhurst being elected to the Bishoprick of Norwich before that he was created Bishop obtained a Faculty or Dispensation from the Archbishop of Canterbury by force of the Statute of Faculties to retain a Parsonage which he had before in Commendam for Three years viz. Ã Festo Michaelis An. Dom. 1560. usque ad idem Festum in An. 1563. Before the first Feast of St. Michael Packhurst is created Bishop and afterwards he resigned the Benefice And the Question was whether that Benefice became void by the resignation of Packhurst or by his promotion to the Bishoprick And it was adjudged That the Church became void by his Resignation Which proves That by virtue of the said Faculty or Dispensation he continued Parson until he had Resign'd Vid. N. Br. 36. h. If a Parson who hath a Faculty or Dispensation to hold his Rectory be created a Bishop and after the Patron present another Incumbent who is Instituted and Inducted now the Bishop shall have a Spoliation against that Incumbent which proves that his real possession in the Parsonage always continued by virtue of the said Faculty or Dispensation And in this Case of a Commendam in Sir Joh. Davis Reports this difference is put between a Faculty to take a Benefice and a Faculty to retain a Benefice viz. That a Faculty granted to one who is not Incumbent to Take a void Benefice is void And a Faculty to one who is Incumbent of a Benefice to Retain the same Benefice is good By virtue of these Faculties Dispensations and Provisions from the Pope Edmond the Monk of Bury who was a Minister in the Court of King Ed. 3. had many Benefices as appears in the foresaid Case of the Bishop of St. Davids 11 H. 4. And Hankford said in the same Case fo 191. a. That by virtue of such Faculty one and the same person had been Abbot of Glastenbury and Bishop also of another Church simul semel and had the Possessions and Dignity of both at the same time Likewise Hen. Chichley who was afterwards Archbishop of Canterbury being a Prebend in the Cathedral Church of Sarum was elected Bishop of St. Davids and before his Consecration the Pope reciting by his Bull that he was elected Bishop of St. Davids granted him a Faculty and power to hold and enjoy all his other Benefices till the Pope should otherwise order c. Vid. Nov. Decis Rot. 331. And that these Faculties or Dispensations to hold Benefices in Commendam were granted in the Court of Rome in the time of King H. 5. appears in Lindw de Praeb c. Audistis ver Dispensatione And although in case of Hen. Beauford aforesaid it was held That the Dispensation came too late it being granted after the Bishop was created Cardinal yet afterwards in the time of King H. 8. Cardinal Wolsey having before he was created Cardinal obtained a Bull from the Pope to retain the Archbishoprick of York as perpetual Administrator and the Abbey of St. Albans in perpetuam Commendam he held both during his life by virtue of the said Faculty or Dispensation Vid. 27 H. 8. 15. b. By these Presidents and Authorities it is evident That before the making of the foresaid Statute of Faculties such Dispensations were had and obtained at the Court of Rome to hold in Commendam Ecclesiastical Benefices in England But the Truth is as in the foresaid Case de Commenda Davis Rep. such Faculties or Dispensations granted by the Pope touching Ecclesiastical Benefices in England were ever contrary to the Law of the Realm for it was a meer usurpation on the Crown of England before the Statutes made against Provisors And these Statutes were made in declaration of the Common Law in that point 12 Ed. 2. Fitz. Qua. Imp. 169. 19 Ed. 2. Eitz Qua non admisit 7. 15 Ed. 3. Fitz. Qua. Imp. 160. 21 Ed. 3. 40. 11 H. 4. 230. a. It is also meet to be known That long before King H. 8. the Statute of 16 R. 2. and divers other Laws against Provisors and Appeals to Rome and the Popes Usurpation upon the Rights of the Crown of England were made well-nigh as severe as any since The first encroachment of the Bishop of Rome upon the Liberties of the Crown of England was made in the time time of King William the Conqueror For before that time the Pope's Writ did not run in England his Bulls of Excommunication and Provision came not thither nor were any Citations or Appeals made from thence to the Court of Rome Eleutherius the Pope within less than two hundred years after Christ writes to Lucius the Brittish King and calls him God's Vicar within his Kingdom Pelagius the Monk of Bangor about An. 400. being cited to Rome refused to appear upon the Pope's Citation affirming That Britain was neither within his Diocess nor his Province And when about the year 600 Augustine the Monk was sent by Gregory the Great into England to Convert the Saxons the Brittish Bishops then in Wales regarded neither his Commission nor his Doctrine as not owing any duty to nor having any dependence on the Court of Rome but still retained their Ceremonies and Traditions which they received from the East-Church upon the first plantation of the Faith in that Island And though Ina the Saxon King gave the Peter-pence to the Pope partly as Alms and partly in recompence of a House erected in Rome for English Pilgrims yet certain it is that Alfred Aethelstane Edgar Edmond Cauutus and Edward the Confessor and other Kings of the Saxon Race gave all the Bishopricks in England per Annulum Baculum 9. In the Case of Evans against Askwith it was agreed That the nature of a Dispensation is for to derogate and make void a Statute Canon or Constitution as to that which it prohibites as to the party and it is as an Exception as to him out of the Statute or Constitution It is said that a Dispensation is Provida Relaxatio mali prohibiti necessitate vel utilitate pensata And in the same Case it was also Resolved by all the Judges That the King hath power to Dispence with Statutes and Canons in force within this Realm By the very Common Law of right it was in the King for the Canons are the Ecclesiastical Laws of the Land and do not bind except they are received in the Realm as appears by the Statute of 25 H. 8. c. 21. And by the Statute of Merton touching one born before Marriage as by the Canon yet at Common Law he is Legitimate And 10 H. 7. 12. it is said That the King may Dispence with one to hold Two Benefices and it seems the Pope
Bishop of Rome had assumed or tooken upon him to be the Spiritual Prince or Monarch of all the World he attempted also to give Laws to all Nations as one real Mark or Signal of his Monarchy but they well knowing Quod ubi non est condendi authoritas ibi non est parendi necessitas did not impose their Laws at first peremptorily on all Nations without distinction but offered them timide precario And therefore he caused certain Rules in the first place to be collected for the Government of the Clergy only which he called Decreta and not Leges vel Statuta These Decrees were published in An. 1150. which was during the Reign of King Stephen And therefore what the Lord Coke observes in the Preface to the Eighth part of his Reports Quod Rogerus Bacon frater ille perquam Eruditus in Libro De impedimentis Sapientiae dicit Rex quidem Stephanus allatis Legibus Italiae in Angliam Publico Edicto prohibuit ne in aliquo detinerentur may probably be conjectured to be meant and intended of those Decrees which were then newly compiled and published Yet these Decrees being received and observed by the Clergy of the Western Churches only for the Eastern Church never received any of these Rules or Canons Kelw. Rep. 7 H. 8. fo 184 the Bishop of Rome attempted also to draw the Laity by degrees into obedience to these Ordinances and to that purpose in the first place he propounds certain Rules or Ordinances for Abstinence or days of Fasting to be observed as well by the Laity as the Clergy which were upon the first Institution thereof called by the mild and gentle name of Regationes as Marsilius Pat. lib. Defensor Pacis par 2. cap. 23. hath observed and thence it seems the Week of Abstinence a little before the Feast of Pentecost was called the Rogation-week that time of Abstinence being appointed at the beginning by that Ordinance which was called Rogatio and not Praeceptum vel Statutum Now when the Laity out of their devotion had received and obeyed these Ordinances of Abstinence then the Bishop of Rome proceeds further De una praesumptione ad aliam transivit Romanus Pontifex as Marsil Pat. there says and made many Rescripts and Orders per Nomen Decretalium which were published in the year 1230. which was in the Fourteenth year of King H. 3. or thereabout Vid. Matth. Par. Hist mag 403. and these were made to bind all the Laity and Sovereign Princes as well as their Subjects in such things as concerned their Civil and Temporal Estates As that no Lay-man should have the Donation of an Ecclesiastical Benefice That no Lay-man should marry within certain Degrees out of the degrees limited by the Levitical Law That all Infants born before Marriage should be adjudged after Marriage Legitimate and capable of Temporal Inheritance That all Clerks should be exempt from the Secular power and others of the like nature But these Decretals being published they were not entirely and absolutely received and obeyed in any part of Christendom but only in the Pope's Temporal Territory which by the Canonists is called Patria obedientiae But on the other hand many of those Canons were utterly rejected and disobeyed in France and England and other Christian Realms which are called Patriae Consuetudinariae As the Canon which prohibited the Donation of Benefices per manum Laicam was ever disobeyed in England France the Kingdom of Naples and divers other Countries and Common-wealths And the Canon to make Infants Legitimate that were born before Marriage was specially rejected in England when in the Parliament held at Merton omnes Comites Barones una voce responderunt Nolumus Leges Angliae mutari quae hucusque usitatae sunt c. And the Canon which exempts Clerks from the Secular power was never fully observed in any part of Christendom Kelw. 7 H. 8. 181. b. which is one infallible Argument That these Ordinances had not their force by any Authority that the Court of Rome had to impose Laws on all Nations without their consent but by the approbation of the people which received and used them For by the same reason whereby they might reject one Canon they might reject all the other Vid. Bodin lib. 1. de Rep. cap. 8. where he saith That the Kings of France on the erection of all Universities there have declared in their Charters that they would receive the Profession of the Civil and Canons to use them at their discretion and not to be obliged by these Laws But as to those Canons which have been received accepted and used in any Christian Realm or Common-wealth they by such acceptation and usage have obtained the force of Laws in such particular Realm or State and are become part of the Ecclesiastical Laws of that Nation And so those which have been embraced allowed and used in England are made by such allowance and usage part of the Ecclesiastical Laws of England By which the interpretation dispensation or execution of these Canons being become Laws of England doth appertain sole to the King of England and his Magistrates within his Dominions and he and his Magistrates have the sole Jurisdiction in such cases and the Bishop of Rome hath nothing to do in the interpretation dispensation or execution of those Laws in England although they were first devised in the Court of Rome No more than the Chief Magistrate of Athens or Lacedemon might claim Jurisdiction in the Ancient City of Rome for that the Laws of the XII Tables were thither carried and imported from those Cities of Greece and no more than the Master of New-Colledge in Oxford shall have Command or Jurisdiction in Kings-Colledge of Cambridge for that the private Statutes whereby Kings-Colledge is governed were for the most part borrowed and taken out of the Foundation-Book of New-Colledge in Oxford And by the same reason the Emperour may claim Jurisdiction in Maritime causes within the Dominions of the King of England for that we have now for a long time received and admitted the Imperial Law for the determination of such Causes Vid. Cawdries Case Co. par 5. and Kelw. Rep. 184. a. Now when the Bishop of Rome perceived that many of his Canons were received and used by divers Nations of Christendom he under colour thereof claimed to have Ecclesiastical Jurisdiction in every Realm and State where these Canons were received and sent his Legates with several Commissions into divers Kingdoms to hear and determine Causes according to these Canons which Canons although neither the Pope nor his Ministers at the first venting and uttering thereof dared to call Laws Ne committerent crimen Laesae Majestatis in Principes as Marâ—il Pat. lib. Defensor pacis par 2. cap. 23. observes who also says That these Canons being made by the Pope Neque sunt humanae Leges neque divinae sed documenta quaedam Narrationes yet when he perceived that these Canons were received allowed
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
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. reâ—iâ— Sub divini Judicii attestatione h. e. damnationis aeternae in extremo Calâ—ulo 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
such a malign influence upon succeeding Princes in After-ages and other Kingdoms and also upon the Popes as some Historiographers do more than conjecture is not so evident as that which is reported by Ingulphus Abbot of Crowland touching Eight Churches to have been Appropriated to that Abbey by several Saxon Kings and though by their Charters yet whether by such exclusively to all Ecclesiastical Authority is not so certain as that William the Conqueror without asking leave of the Pope Appropriated three Parish-Churches to the Abbey of Battaile which he built in memory of his Conquest and his youngest Son H. 1. nigh twenty in one day to the Cathedral of Sarum by his Letters Patents together with the Tithes of those Parishes which his elder Brother William Sirnamed Rufus had depopulated and disecclesiated in New-Forrest in Hantshire Notwithstanding which the Pope who understood his Supremacy in matters Ecclesiastical better than to part with it upon any Presidents of Temporal Usurpations doth frequently in his Decretals without any contradiction rather assume than arrogate this Right unto himself as a Prerogative of the Apostolick See and granted to several Religious Orders this Priviledge of taking Ecclesiastical Benefices at Lay-mens hands by the mediation of the Diocesan who at a moderate and indifferent rate as one Moity of the Annual profits of the Benefice was to be a Medium or Expedient between the Religious House and the Incumbent but in process of time partly by the remisness of the Bishops in that point and partly by the Covetousness of the Monks and Friers in those days the Incumbents proportion became at last so inconsiderable that Pope Vrban the Fifth by his Legate Othobon about the year 1260 was forced to inhibit all the Bishops here in England from Appropriating any more Churches to any Monastery or othes Religious Houses save only in such cases where Charity might prevail in derogation of Law and under this Proviso also That the Bishops should assign a competent proprotion of the Parochial Fruits for the Maintenance of the Incumbent according to the annual value thereof in case the new Appropriators did it not within Six months next after such Appropriation but this Constitution not taking the effect expected a convenient Maintenance for the Vicar was otherwise provided for by Two Statutes the one made by R. 2. the other by his Successor H. 4. So that upon the whole it may be rationally inferr'd that these Appropriations originally came partly by the Act of Ecclesiasticks and partly by the Laity But what way soever they came this is and hath been held for Law within this Realm That albeit the Pope takes upon him to be Supream Ordinary yet no Appropriations made by him or by any Authority derived from him were ever allowed or approved of by the Laws of this Realm it being held That no Appropriations within this Realm can be made but by the King or by Authority derived from him and by his License and that all other Appropriations are void in Law An Appropriation may be by the King Sole where he is Patron but it may not be by the Patron Sole Grendon's Case in Plowden 17 E. 3. 39. An Appropriation cannot be without the King's License Ward 's Case Poph. Rep. Nor will the Objection hold against the King to say No man can make an Appropriation of any Church having Cure of Souls the same being a thing meerly Ecclesiastical and to be made by some Ecclesiastical person but he only who hath Ecclesiastical Jurisdiction for such Jurisdiction the King hath and is such a Spiritual person as may of himself Appropriate any Church or Advowson because in him resides the Ecclesiastical Power and Jurisdiction And therefore in a Case of Commendams it was long since held That an Appropriation made by the Pope could not be good without the King's License The like in a Case of Avoidance was vouched in Cawdrie's Case That the Entry into a Church by the Authority of the Pope only was not good and that he could not Appropriate a Church to Appropriatees to hold to their own use And in Gyendon's Case it was Resolved by the Justices That the Ordinary Patron and King ought to be assenting to every Appropriation and that the Authority which the Pope had usurped in this Realm was by Parliament 25 H. 8. acknowledged to be in the King who as Supream Ordinary may Appropriate without the Bishop's Assent 2. It seems therefore without any contradiction most evident That Appropriation or Impropriation at the Original thereof was when the Religious Houses of the Romish Church and the Religious persons as Abbots Priors and the like had the Advowson of any Parsonage to them and their Successors obtaining License of their Holy Father the Pope as also of Kings and of their Ordinaries that they and their Successors should from thenceforth be the Parsons thereof that it should thenceforth be a Vicarage and that a Vicar should serve the Cure So that at the beginning of this Spiritual Monopoly of Appropriations they were made only to such Spiritual persons as were qualified to Administer the Sacramental Ordinances and perform Divine Service Afterwards the Grant thereof was gradually enlarged and extended to Deans and Chapters though Bodies Politick and as such not capable of performing such Divine Services yea and which was most Ridiculous as well as Impious to Nunus which were Prioresses to some Nunnerics but not Female-Preachers as in these daies All which was under a Pretence of maintaining Hospitality and to supply all defects hereby occasioned there must be the Invention of a Vicar as the Appropriators Deputy to serve them and the Cure for which he had and hath the Tithe of Mint and Cummin and such other small ossals of Tithes as might be spared out of the weightier Granaries thereof without breach of the Laws of Hospitality thereby Sacrilegiously robbing the Church to enrich themselves Thus the poor Vicar shall have something like a certain portion of the Benefice whilst the Abbot and the Covent and their Lay-Successors shall be the Parsons and receive the main Profits and so live by the Altar without waiting on it and be Re-baptized by the Law with the name of Parsons Imparsonces This was that Anciently which we now call Appropriation which cannot be made to begin in the Parson's Life-time without his Assent and is so called because they hold the Profits ad proprium suum usum but if such Advowsons happen to be recovered by Ancient Title then and in such case the Appropriation of the Parsonage is annulled 3. So that from the Premisses it is evident That this Appropriation or Impropriation is an Annexation of an Ecclesiastical Benefice which originally was as it were in nullius Patrimonio to the proper and peculiar use and benefit of some Religious House Bishoprick Dean and Chapter Colledge c. Quod Divini juris est id nullius est in bonis Instit de
placuit 10. q. 3. Rebuff de Commenda who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati sumere ex eo alimenta debita persolvere sicut is qui titulum habet c. 1. de Solutio hoc afferit Archidiac in cap. qui plures 21. q. 1. 7. The grand Case of a Commendam was that of Evans and Kiffin against Ascuth which being two daies argued by the Judges and by Noy Attorney is acutely and succinctly Reported thus viz. In Trespass Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland But before Consecration or Confirmation he obtained a Patent with large words Non obstante retinere valeat in Commendam the said Deanary c. And afterwards he was chosen Bishop of Bristol and then also before Installation he obtained another Patent with a more ample Dispensation of retaining the Deanary in Commendam It was Agreed by all That the Church or Deanary c. in England shall be void by Cession if the Parson or Dean c. be made a Bishop in Ireland For the Canon Law in that is one through all the World Also Ireland is governed by the Laws of England and is now as part of England by Subordinacy Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Case Confirmation under the Great Seal of England of Presentation to a Church in Ireland of the Heir of the Tenant of the King and that a Dispensation under the Great Seal of England is good in this Case without any Patent of it in Ireland vid. 8 Ass 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good Note 20 H. 6. 8 Scir fac sued in England to Repeal a Patent under the Great Seal of Ireland vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England Note Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King under the Great Seal of England yet the King may let them be chosen per Congé d'Eslire c. 1 Noy Attorney Argued at Bar and so stated the Points of the said Case by themselves If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop for it is Agreed That a Commendatary Dean by Recipere in Commend cannot Confirm because he is but a Depositarius Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name and by such a Commend he may take the profits and use Jurisdiction and yet is not a Dean compleat Note he may make a Deputy for Visitation but not for Confirmation of Leases Note if there be two Deans in one Church both ought to Confirm Vid. Dy. 282. Co. Inst 30. a. 2 The Second point if such a Bishop be chosen to another Bishoprick if now the first Church in Commend admitting that there was a Full Incumbent be void presently by the Election and assent of the Superiour viz. the King And it seemed to him that it was because there need not be a new Consecration and he vouch'd Panormitan 2. par 101. The Bishop of Spires was chosen Bishop of Trevers and had the assent of the Pope and that he came to Trevers and there found another in possession and he would have returned to the former Bishoprick and could not He also Cited 8 Rep. Trollop's Case That the Guardianship of the Temporalties cease by the Election of a new Bishop Note that Serjeant Henden who argued on the contrary vouch'd Mich. 4 Jac. May Bishop of Carlisle made a Lease to the Queen and a Commission issued out of the Exchequer to take it and the Dean and Chapter Confirmed it before the Inrolment of it and yet Adjudged good That Case was for the Castle of Horne First the Judges having Argued two daies Resolved 1 That all Commendams are Dispensations and that Cession commenced by the Canon and Council of Lateran 2 That the King may dispense with that Canon 11 H. 7. 12. For the Pope might and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris and not by Introduction novi Juris and by that Statute a concurrent power is given to the Archbishop of Canterbury and may be granted to the King or by the Archbishop c. 3 That the Dispensation after Election to the first Bishoprick and before Consecration c. and also the Dispensation after Election to the second Bishoprick and before Confirmation is good enough in both Cases and he remains a good Dean to Confirm c. and afterwards the Judgment in the Case being an Action of Trespass was given accordingly 8. A Commendam is to be granted Necessitate evidenti vel utilitate Ecclesiae suadente and in the Infancy of the Church quando defuerunt Pastores they were necessary A Commendam ordinarily is but for six months and he that hath it is Custos only the other is extraordinary and that is for life and he is an Incumbent The King by his Prerogative Royal may grant a Commendam without any Statute yet if such Commendam shall be good it may be very mischievous to the Patron It is it seems agreed in the Books of the Common Law that the use of Commendams in their first Institution was lawful but not the abuse thereof and that a perpetual Commendam viz. for life was held unlawful and condemned by a Council of 700 Bishops It is likewise Reported to us That where the Incumbent of a Church was created a Bishop and the Queen granted him to hold the Benefice which he had in Commendam It was the Opinion of the Justices That the Queen had the Prerogative by the Common Law and that it is not taken away by the Stat. of 35 H. 8. 9. In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale on a Special plea pleaded by Wale the Incumbent the Kings Attorney demurred in Law The Case in substance was this viz. the Corporation of Kilkenny being Patrons of a Vicarage within the Diocess of Ossery Presented one Patrick Fynne thereunto who was Admitted Instituted and Inducted After that during the Incumbency of the said Fynne Adam Loftus Archbishop of Dublin and Ambrose Forth Doctor of the Civil Law being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall then Bishop of Ossery That the said Bishop unum vel plura Beneficia curata vel non curata sui vel alieni Jurispatronatus non excedentia annuum valorem quadraginta Librarum adtunc vacantia vel quae per imposterum vacare contigerint perpetuae Commendae titulo adipisci occupare retinere omnesque fructus
ad Familiae suae sustentationem convertere possit juribus sive institutis quibuscunque in contrarium non obstantibus Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland according to the Statute of 28 H. 8. c. 16. After this viz. 20 May An. 38 Eliz. Patrick Fynne the Incumbent died whereby the said Vicarage being void and so continuing void by the space of Six months whereby the Bishop had power to Collate thereunto by Lapse the said Bishop by virtue of the said Faculty or Dispensation adeptus est occupavit retinuit the said Vicarage perpetuae Commendae titulo and took the Fruits thereof to his own use until the 13 Febr. An. 1609. on which day the Bishop died After whose death the said Cyprian Horsefall having purchased the next Avoidance of that Vicarage Presented the said Wale who was Admitted Instituted and Inducted And afterwards the King Presents one Winch who being disturbed by the said Horsefall and Wale the King brought a Quare Impedit Whether the said Bishop when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation were thereby made compleat Incumbent thereof so as the Church being full of him no Title by Lapse could devolve to the King during the life of the Bishop was the Principal point moved and debated in this Case And in the Argument of this point which was argued at the Bar first by the Counsel at Common Law and then by two Advocates well versed in the Canon Law and at the Bench by all the Justices Two things were chiefly considered by those who argued for the Kings Clerk 1 Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty 2 What effect or operation that Faculty or Dispensation shall have by the Law As to the First they held clearly for Law That a Bishop by the Ancient Ecclesiastical Law of England may not hold another Benefice with Cure in his own Diocess and if he hath such Benefice before his promotion to the Bishoprick that it becomes void when he is created a Bishop And this is the Ancient Law of England as is often said in the Bishop of St. David's Case 11 H. 4. 41 Ed. 3. 5. b. agrees therewith The Reason is for that the Bishop cannot visit himself and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9. That if a Parson be made a Dean the Parsonage becomes void for that the Dignity and the Benefice are not compatible So no Ecclesiastical person by the Ancient Canons and Councils could have Two Benefices with Cure simul semel but the first would be void by taking asecond And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 8. cap. 13. which was made in Affirmance of the Ancient Law as appears in Holland's Case Co. par 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. N. Br. 34. l. And the Text of the Canon Law which is the proper Fountain of this Learning proves it fully Decretal de Praeben Dignit c. de multa Where it is said De multa providentia fuit in Lateranensi Concilio prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum instituta c. Praesenti Decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale Beneficium habebat eo sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. And with this agrees the Text in Decret Caus 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest So that it is evident that the Bishop could not by any Law have or retain that Benefice within his Diocess without a Dispensation which is Relaxatio Juris and permits that to be done which the Law had before prohibited It is to be observed That Commenda est quaedam provisio and therefore Gomez in Reg. de Idiomate saith That Commendare est Providere quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus And by the Canon Law the Consent of the Patron is requisite where a Benefice is given in Commendam Lib. 6. Decretal c. Nemo where the Gloss saith Ad Commendam vacabitur Patronus si qui alii ex tali Commenda laeduntur Also in Constit Othob de Commendis it is said expresly That Consensus Patroni ad Commendam requiritur The Canon Law holds these Commendams as very prejudicial and that in divers respects and therefore says That Experientia docet occasione Commendarum cultum Divinum minui Curam animarum negligi hospitalitatem Consuetam debitam non servari ruinis aedificia supponi c. 6. Extra cap Pastoris And whereas it is said of a Bishop That he is to be unius uxoris vir the Canonists expound it That he shall have but one Bishoprick or only one Cure for they say that per Commondam Bigamia contrahitur in Ecclesia Therefore it was well Resolved by that good and pious Bishop who when another Benefice was offered him to hold in Commendam said Absit ut cum Sponsa habeam Concubinam But for the clearer understanding of the nature and difference of these Commendams it is further to be considered That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius and therefore Decret caus 21. q. 1. Qui plures the Gloss there saith Commendare nihil aliud est quam deponere This Commenda or Commendatio Ecclesiae is divers according to the nature of the Church and the Limitation or Continuance of the Commenda for a Commenda may be of a Church either Curatae or non Curatae and it may be either Temporanea viz. for a time certain as for Six months or Perpetua viz. during the life of the Commendatary A Church with Cure may not be given in Commendam unless upon evident necessity or the benefit of the Church viz. to supply the Cure till provision be made of a sufficient Incumbent And therefore by the Council of Lions it was provided That a Parochial Church should not be given in Commendam nisi ex evidenti necessitate vel utilitate Ecclesiae quod talis Commenda ultra semestris temporis spatium non duraret quod secus factum fuerit sit irritum ipso jure c. 6. Decretal c. Nemo But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary vel ad mensam In that sense the Canonists say That Commenda is quasi comedenda quia Ecclesiae quae
3 ly if he Present not within the time by Law limited then the King shall Present for that he is Patron paramount of all the Benefices within his Realms as also because the King and his Progenitors Kings of England have had Authority time out of mind to determine the Right of Patronages in this Realm in their own Courts whence lies no Appeal to any Foreign pretended Power The Rosell Summist indeed makes more Gradations in this matter as from the Patron to the Chapter from the Chapter to the Bishop from the Bishop to the Metropolitan from the Metropolitan to the Patriarch and if none such then to the Pope Sed hoc nihil ad nos part of whose happiness is an Index Expurgatorius of the last recited Premisses And although the Law is That the Ordinary shall Present in case the Patron doth not within Six months yet the Law withal is That if the Patron Present before the Ordinary put in his Clerk the Patron of right shall enjoy his Presentation And if the Ordinary surcess his time limited he loses his power as to that Presentation specially if it be devolv'd to the King And when the Presentation is in the Metropolitan he shall put in the Clerk himself and not the Ordinary and so there is no default in the Ordinary though he Present not the Clerk of the Patron if his time be past in which case there is no remedy for the Patron against the Ordinary This matter of Lapse is of very ancient practice for Mich. 3. E. 1. B. Rot. 105. Staff the Bishop of Coventry and Lichfield pleaded a Collation by Lapse Authoritate Concilii against the Prior of Landa to the Church of Patingham And 6 E. 1. Rot. Paten membra 25. in a Quare non admisit by the Abbot of St. Mary Eborum against the Bishop of Norwich the Bishop made a Title by Lapse viz. That he Collated Authoritate Concilii post Lapsum semestre c. And there afterwards in the Judgment it is said Quia tempus semestre Authoritate Concilii non incipit versus Patronum nisi à tempore scientiae mortis c. Q. what Council is here meant or intended For P. 9 E. 1. B. Rot. 51. it appears that Lapse was given per Concilium Lugdunense post tempus semestre The like also in a Writ in the time of E. 2. cited by Sir Ed. Co. 6. in Catesby's Case 62 yet in Bracton the Lapsus temporis is de Constitutione Lateranensi And yet Britton fo 225. speaks of the Tempus Semestre or the Six months according to the Council of Lions But Mr. Selden in his Book of Tithes 390. says That the Manuscripts of Breton have Lateran for Lions and in fol. 388. holds That this Lapse was received in the Laws of this Realm out of the General Council of Lateran held in the year 25 H. 2. as the Learned Serjeant Roll observes in his Abridgment on this word of Lapse where he also cites Hovenden fo 326. asserting That among the Canons of the Council of Lateran under Alex. 3. held under Alex. 3. An. 1118. in the time of King Hen. 2. there is a Canon in these words or to this effect viz Cum vero Praebendas Ecclesias seu quaelibet Officia in aliqua Ecclesia vacare contigerit vel si etiam mod◠vacant non diu maneant in suspenso sed infra Sex menses personis quae digne administrare valeant conferantur si autem Episcopus ubi ad eum spectaverit conferre distulit per Capitulum Ordinetur And before the said Council the Patron was not limited to any time but might Present at his pleasure without any Lapse Touching other Presidents of great Antiquity relating to this Subject of Lapse the Reader is here referred to that Learned Serjeant Rolle in the forecited place of his Abridgment And although according to the Gradations aforesaid the Lapse devolves from the Patron to the Bishop from the Bishop to the Archbishop from the Archbishop to the King yet if after Lapse incurr to the Metropolitan and before Collation by him made the Patron Present he may Present to the Ordinary of the Diocess without Presenting to the Metropolitan Contra H. 41 El. B. R. per Popbam for thereby he seems to redeem his neglect But yet if Lapse devolve to the King and then the Inferiour Ordinary Collate by the Lapse and his Clerk be Instituted and Inducted it seems this doth not make a Plenarty against the King to put him to his Quare Impedit but he may notwithstanding Present and oust the Clerk of the Ordinary for when Lapse incurrs to the King it cannot be taken away by the Ordinary And then when the Ordinary Collates without good Title it makes not any Plenarty against him who hath the right as the King hath to Present for a Lapse incurring to the King is not like that which incurrs to the Metropolitan But if a Patron Present and his Clerk be Instituted and remain Eighteen months without Induction in that case there doth not any Lapse incurr to the King for the King hath not any Lapse but where the Ordinary might have had it before But if a Bishop dies whereby the Temporalties are in the Kings hands if during that time the Six months pass whereby a Lapse happens the King shall have it and not the Guardian of the Spiritualties Nor doth an Admittance of a Resignation by Fraud take away the Kings Title for in Comber's Case against the Bishop of Cicester where the Issue in a Quare Impedit was If S. R. by covin between him and C and R. did Resign into the hands of the said Bishop if the King hath Title of Lapse and a Resignation be made by fraud and one Admitted this shall not take away the Kings Title for if the Kings Title appear upon Record then shall go out a Writ for the King but otherwise it is upon matter of Evidence the King doth lose his Presentation as well by resignation as by death where he hath Title to Present by Lapse and doth not except the Resignation be by Fraud And in the Case of the Queen and the Archbishop of York and Bucks it was Resolved by the Justices That a Collation although double or treble cannot be an Usurpation against the King to put him out of an Advowson 2. The Canon Law allows Two months more to an Ecclesiastical than to a Lay-Patron ere the Lapse shall be incurr'd the former having by that Law Six months to Present the latter but Four Summ. Angel tit Jus Patronat § 16. So the Law of Scotland Pars Couns par 1. c. 2. We need not enquire into the Reason of that difference or disproportion let it suffice the Laity That it was the Canonists pleasure to have it so for reasons best known to their own interest the Common Law impartially levels them both to one and the same equal standard
unless he be qualified for Plurality Or if a Dean be made a Bishop yea though a Dean or Parson in England be made a Bishop in Ireland as aforesaid his Benefice becomes void as was Resolved in Evans and Askwith's Case for that the Constitution or Council which makes it void is general and not limited to any place And so it was also Resolved 3 E. 3. Fitz. Trial and so adjudged 21 Jac. C. B. in the Case between Woodley and the Bishop of Exon and Manwaring 12. The case may so happen that albeit a man having a Benefice with Cure of Souls accept another and be Instituted and Inducted into the same yet his First Benefice shall not be void by Cession though the Benefices be incompatible though there be no Dispensation in the case and although himself be not otherwise qualified for Pluralities For it hath been Resolved That if a man having one Benefice accept another and be Instituted and Inducted into the Second and then read not his Articles that yet the First Benefice voids not by Cession because the Second is as not taken Notwithstanding it cannot be denied but that where a man having a Benefice with Cure of Souls above the value of Eight pounds per Ann. doth take another with Cure and is thereto Admitted Instituted and Inducted the First Benefice without Dispensation becomes void as in the Case of the King against George Lord Archbishop of Canterbury In which Case it was held That the Church was absolutely void in facto jure by taking of a Second Benefice and that by the express words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto jure quoad the Patron and all others Sed Q. whether void as to an Usurper for in some cases a Benefice may be void as to some persons and not void as to others As in the Case of Simony whereby as well as by Cession a Church becomes void yet in that case although it be void to all men quorum interest to the King and his Incumbent and all that claim under him and to the Parishioners to the Ordinary and to the like yet according to Sir Hen. Hobart Chief Justice it is not void to an Usurper for a man without Right cannot Present unto it as to a Church void nor the Ordinary so discharge himself if he receive the Clerk of an Usurper for he is none of them quorum interest Pasch 14 Jac. Rot. 1026. Case of Winchcombe against the Bishop of Winchester and Rich. Pulleston Hob. Rep. 13. If the Next Avoidance be granted to Three persons and after the Church become void and then Two of the Three Present the Third Grantee being a Clerk in this case the Presentation is good and the Bishop may not refuse him inasmuch as all Three were Joynt-tenants thereof by the Grant and only Two of them joyn in the Presentment for that the Third person cannot Present himself but if only one of these Three Grantees Present the Third the Bishop hath power to refuse him And if an Incumbent having the Advowson do Devise the Next Avoidance it seems it is good Trin. 13 Jac. B. R. Harris vers Austen Rol. Rep. 14. In Holland's Case it was Resolved That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure accept another with Cure the First was void but this was no Avoidance by the Common Law but by Constitution of the Pope of which the Patron might take Notice if he would and Present without Deprivation But because the Avoidance accrued by the Ecclesiastical Law no Lapse incurred without Notice as upon a Deprivation or Resignation so that the Church was void for the benefit of the Prtron not for his disadvantage But now if the First Benefice be of the value of Eight pounds per annum the Patron at his peril ought to Present for to an Avoidance by Parliament every one is party but if not of Eight pounds it is void by the Ecclesiastical Law of which he needs not take Notice 15. In a Quare Impedit The Defendant said A. was seized of the Advowson of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance and that J. S. died and made his Executor who Presented the Plantiff to the Church being void Upon Non concessit it was found That A. granted to J. S. durante vita ipsius J. S. primam proximam Advocationem and that he died before the Church became void Whether this was an absolute Grant of the Next Avoidance as is pretended was the Question And Resolved it was not but it is limited to him to Present to the Advowson if it becomes void during his life and not that otherwise it should go to his Executors and therefore it was Adjudged against the Defendant 16. The Incumbent of a Church purchased the Advowson thereof in Fee and devised that his Executor should Present after his decease and devised the Inheritance to another in Fee It was said the devise of the Next Avoidance was void because when his Will should take effect the Church was instantly void But the Court held the devise was good for the Law is so and it shall be good according to the intent of the party expressed in his will The Grant of the Next Avoidance during the Avoidance is void in Law Steephens and Clark's Case More 's Reports 17. In a Quare Impedit the Case was The Corporation of B. being seized of an Advowson granted the Next Avoidance to J. S. and afterward granted primam proximam Advocationem to the Earl of B. who granted it to the Plaintiff The Church became void J. S. Presented his Clerk who was Inducted and then the Church became void again It was Resolved that the Second Grant was void so as the Plaintiff had no Title for when he had granted primam proximam Advocationem to one he had not Authority to grant it after to another but if the First Grant had been lost so as it could not have been pleaded there perhaps the Second Grand had been good 18. In a Quare Impedit the Case was H. being Incumbent of a Church was Created a Bishop in Ireland and the Queen Presented the Defendant It was the Opinion of the Justices That this Creating of the Incumbent a Bishop in Ireland was a good cause of Avoidance and that the Queen should have it by her Prerogative But if the Queen doth not take the benefit of the First Avoidance but suffers a Stranger to Present and the Presentee dies she may not have Prerogative to Present to the Second Avoidance 19. The Next Avoidance of a Church was granted to A. and B. A. releases to B. and after the Church became void It was Adjudged in this Case That B. may Present and upon Disturbance have a Quare Impedit in his own Name
the First were vnder the annual value of Eight pounds or sine cura And what persons are qualified either for the Granting or receiving Pluralities appears by the Stat. of 21 H. 8. c. 13. In which there is not any limitation of Number of Chaplains to be retained by the King Queen and Prince and other the King's Children for which reason they may retain as many Chaplains as they please and each of them qualificable by a Dispensation for Plurality But if either of the King's Chaplains be Sworn of his Majesties most Honourable Privy Council such may purchase a Dispensation to hold Three Benefices with Cure of Souls The Persons specially qualified by Dispensations for Pluralities are either 1 Such as are retained as Chaplains to Persons of Honour Or 2 Such as are qualified thereto in respect of their Birth Or 3 Such as are dignified with some certain Degrees in either of the Universities of this Kingdom In reference to the first of these every Archbishop and Duke may have Six Chaplains Marquess and Earl Five every Viscount and other Bishop Four Lord Chancellor Three Knight of the Garter Three Baron Three Dutchess Marchioness Countess and Baroness being Widows Two Treasurer and Controller of the Kings House Two the Kings Secretary and Dean of his Chappel the Kings Almner and Master of the Rolls Two the Chief Justice of the Kings Bench and Warden of the Cinque Ports One In reference to the Second qualification viz. By Birth the Brothers and Sons of all Temporal Lords and of Knights born in Wedlock may purchase Dispensations to hold Two Parsonages c. with Cure of Souls In reference to the Third all Doctors and Batchelors of Divinity Doctors and Batchelors of Law Presented to any of these Degrees not by grace only but by any of the Universities of this Realm may purchase and hold as aforesaid Vid. Statute 21 H. 8. cap. 13. 4. Although by the Letter of which Act the First Living is not void until Induction into the Second the words being If the party be Instituted and Inducted in possession of the Second Living that then the first shall be void yet to avoid the great inconveniency as Sir Simon Degge observes in his Parsons Counsellor that otherwise would ensue it has been held That the First Living is void upon the bare Institution into the Second and so it should seem the Law was before the making of this Act where the party had no Dispensation The sufficiency of qualification for Plurality relates as well to the Dispensation as to the Person for if the Dispensation after its being had from the Master of the Faculties be not confirmed under the Great Seal of England other qualifications will not suffice Nor are the supernumerary Chaplains of any person of Honour retained by him above the Number allowed by the Statute qualified for Plurality Co. 4. 90. B. versus the Bishop of Gloucester and Saveacre Anders More 561. The death attainder degradation or displacing of a Chaplains Lord or his discharging his Chaplain unqualifies him for a Plurality of incompatible Livings otherwise of the Chaplain of a Dutchess Marchioness Countess or Baroness in case of After-marriage A double Capacity in one and the same person of Honour to qualifie his Chaplains doth but capacitate him to qualifie his Number of Chaplains only according to his best qualification A Person of Honour having retained his full Number of Chaplains and discharging them after their preferment may not during their Lives qualifie others 5. The Question was formerly put Whether the 8 l. yearly value intentioned in the Statute of 21 H. 8. c. 13. shall be understood according to the Taxed value in the Kings Books or according to the very true value of the Benefice Mr. Hughes in his Parsons Law reports a Case in King James's time wherein this Question was debated pro con the Judges equally divided the Case for difficulty and variance of Opinion adjourned and afterwards as he there speaks de auditu by order of the King compounded In that Case Two Presidents it seems were shewed in proof of that Opinion which inclined to have it taken according to the very value of the Benefice notwithstanding when the same point came again several years after into question the Court then seemed to incline against the Opinion which was for the very value of the Benefice But says he the Case was not then resolved or adjudged but remaineth a Question undetermined Quaere the Law Foster and Walmesley Justices held the value should be taken according to the Taxed value as in the Book of First-Fruits but Warburton and Coke Chief Justice Contra. It hath been Resolved in Holland's Case and likewise in Digby's Case Rep. 4. and often before since the Council of Lateran An. Do. 1215. That if a man have a Benefice with Cure whatever the value be and is Admitted and Instituted into another Benefice with Cure of what value soever having no Qualification or Dispensation the First Benefice is ipso facto so void that the Patron may Present another to it if he will But if the Patron will not Present then if under the value no Lapse shall incurr untill Deprivation of the first Benefice and Notice But if of the value of eight pounds or above the Patron at his peril must Present within Six months by the Statute of 21 H. 8. And in that Case of Digby it was adjudged That when a man hath a Benefice with Cure above eight pounds and afterwards taketh another with Cure and is Presented and Instituted and before Induction procures the Letters of Dispensation that this Dispensation comes too late For by the Institution Ecclesia plena consulta existit against all persons except the King for every Rectory consisteth upon Spiritualty and Temporalty And as to the Spiritualty viz. Cura animarum he is compleat Parson by the Institution for when the Bishop upon Examination had admitteth him able then he doth Institute him and saith Instituo te ad tale Beneficium habere curam animarum of such a Parish accipe curam tuam c. Vide 33 H. 6. 13. But touching the Temporalties as the Glebe-Lands c. he hath no Freehold in them until Induction For by the General Council of Lateran Anno Dom. 1215. it appeareth That by the acceptance of two Benefices the first is void Aperto jure for upon this Council are the Books of the Common Law in this Caâ—e founded And it was in this Case Resolved That this was an Acceptance of a Benefice cum Cura within the Statute of 21 H. 8. Institution is an Acceptance by the Common Law A man was Presented to a Church with a Vicarage endowed the Parson accepted of a Presentation to the Vicarage without Dispensation Whether this were a Plurality by the Canon Law and by the Statute of 21 H. 8. was the Question Hobart Chief Justice was of Opinion That
Conviction of Perjury in the Spiritual Court according to the Ecclesiastical Laws which although as aforesaid it be a just Cause of Deprivation must yet be signified by the Ordinary to the Patron so also must that Deprivation which is caused by an Incapacity of the party Instituted and Inducted for want of Holy Orders 3. By the Statute of 21 H. 8. if an Incumbent having a Benefice with Cure of Souls value 8 l. per ann take another with Cure immediately after Induction thereunto the former is void and void without any Declaratory Sentence of Deprivation in the Ecclesiastical Court in case the Second Benefice were taken without a Dispensation and of such Avoidance the Patron is to take notice at his peril And as Avoidance may be by Plurality of Benefices incompatible without Dispensation so also by not Subscribing unto and not reading the 39 Articles as aforesaid which by the Statute of 13 Eliz. c. 12. is a Deprivation ipso facto as if the Incumbent were naturally dead insomuch that upon such Avoidance there need not any Sentence Declaratory of his Deprivation but the very pleading and proof of his not Reading the said Articles is a sufficient Barr to his claim of Tithes without any mentioning at all his being deprived in the Ecclesiastical Court Yet Sir Simon Degge in his Parsons Counsellor putting the Question What shall be intended by the words Deprived ipso facto as whether the Church shall thereby immediately become void by the Fact done or not till Conviction or Sentence Declaratory modestly waives his own Opinion and says it is a Quaere made by Dyer what shall be intended by the words ipso facto Excommunicate for striking with a Weapon in the Church-yard albeit by the Canon Law which condemns no man before he be heard requiritur sententia Declatoria 4. Touching Deprivation by reason of Miscreancy the Cardinal who by the Bishop of Durham was Collated to a Benefice with Cure is it seems the standing President in which case it was Agreed that notwithstanding the Cardinal 's being deprived for his Miscreancy in the Court of Rome yet whether he were Miscreant or not should be tried in England by the Bishop of that Diocess where the Church was 5. Among the many Causes of Deprivation forementioned you do not find that of Marriage in the Priest which was anciently practicable as appears by what the Lord Coke reports touching an Incumbent in the time of King Ed. 6. who being Deprived in Queen Maries daies partly because he was a Married person and partly because of his Religion was restored again in the time of Queen Elizabeth In whose Case it was Adjudged That his Deprivation was good until it was voided by a Sentence of Repeal whereby he became Incumbent again by virtue of his First Presentation without any new Presentation Institution or Induction In those days it was held That the Marriage of a Priest was a sufficient cause to deprive him of his Benefice Mich. 4. Ma. Dy. 133. 6. In the Case where a meer Lay-man is Presented Instituted and Inducted he is notwithstanding his Laity such an Incumbent de facto that he is not Deprivable but by a Sentence in the Ecclesiastical Court but then the Ordinary is in that case to give Notice of such Deprivation to the Patron otherwise in case the Ordinary for that cause refused him when he was Presented by the Patron But where Non-age is the cause of Deprivation as when one under the age of 23 years is Presented Notice is to be given it having been Adjudged That no Lapse shall incurr upon any Deprivation ipso facto without Notice seeing the Statute of 13 Eliz. 12. says nothing of Presentation which remaining in force the Patron ought to have Notice 7. As in the Admission of a Clerk to a Benefice whatever is a Legal impediment will also be a sufficient cause of Deprivation so in reference to both the Law takes care to distinguish between that which is only Malum prohibitum and that which is Malum in se and therefore doth not hold the former of them such as frequenting of Taverns unlawful Gaming or the like to be a sufficient cause of a Clerks Non-admission to a Benefice or of his Deprivation being Admitted Otherwise if you can affect him with that which is Malum in se in which case Notice is to be given the Patron by the Ordinary of the Cause of his Refusal or Deprivation as also it is in case of Deprivation for not Subscribing or not Reading the 39 Articles of Religion according to the foresaid Statute of 13 Eliz. 12. which Notice ought to be certain and particular a general Notice of Incapacity not sufficing in which case an Intimation of such particular Incapacity affixed on the Church-door if the Patron be in partibus longe remotis or may not easily be affected therewith will answer the Law Vid. 18 Eliz. Dyer 346. 22 Eliz. Dyer 369. 16 Eliz. Dyer 327. Co. par 6. 29. Green 's Case 8. It is evident from the Premisses That a Deprivation from an Ecclesiastical Benefice will follow upon a Disgrading or Degradation from the Ecclesiastical Function or Calling for this Degradation is the Incapacitating of a Clerk for discharge of that holy Function for it is the punishment of such a Clerk as being delivered to his Ordinary cannot purge himself of the Offence whereof he was convicted by the Jury And it is a Privation of him from those holy Orders of Clerkship which formerly he had as Priesthood Deaconship c. And by the Canon Law this may be done Two waies either Summarily as by Word only or Solemnly as by devesting the party degraded of those Ornaments and Rites which were the Ensigns of his Order or Degree But in matters Criminal Princes anciently have had such a tender respect for the Clergy and for the credit of the whole profession thereof That if any man among them committed any thing worthy of death or open shame he was not first executed or exposed to Publick disgrace until he had been degraded by the Bishop and his Clergy and so was executed and put to shame not as a Clerk but as a Lay-Malefactor which regard towards Ecclesiasticks in respect of the dignity of the Ministry is observed by a Learned Author to be much more Ancient than any Papistical Immunity and is such a Priviledge as the Church in respect of such as once waited on the Altar hath in all Ages been honoured with 9. Robert Cawdry Clerk Rector of the Church of L. was deprived of his Rectory by the Bishop of London and his Collegues by virtue of the high Commission to them and others directed because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common Prayer but the Form of the Sentence was That the said Bishop by and with the assent and
alter not the Prescription And he cited a Cause which was in this Court argued at Barr and afterwards at Bench between Cooper and Andrews Mich. 10 Jac. Rot. 1023. for the Park of Cowhurst Vid. 32 E. 1. Fitz. Avowry 240. 5 E. 2. Fitz. Annuity 44. 20 E. 4. 14. 14 E. 4. 4. But this Case was adjudged for the Plaintiff Quod stet Prohibitio and that which is by the name of Park is for the Land and is annexed to the Land by the name of Park if the Prescription had been to pay a Buck or a Doe out of the Park then it would alter the Case But it is general and had been paid also after the Park disparked And the Case of Cooper and Andrews was a shoulder of every third Deer that was killed in the Park and two shillings in money and that Case was never Adjudged 32. V. brought Trespass against T. Clerk Vicar of A. for taking Bona Catalla and count for the taking of two Carectac glaci Anglicè Wood And upon Not guilty pleaded the Jury gave this Special Verdict viz. for the Moity of a Load of Wood Si videbitur Curiae quod Decimae glaci ne sunt Minutae Decimae then the Defendant Not guilty but Si sunt Minutae Decimae then he is Guilty This Case was argued at Barr by Bridgman and Henden Serjeants And the Court Vnement agreed That for ought that here appears this Verdict being found without any Circumstance that this Wood shall be taken to be Minutae Decimae It was agreed by Henden That if it had been found Wood growing in a Garden then Minutae Decimae And it was agreed by the Court That it might have been so found that it should be Majores Decimae and Praedial as if all the profits of the Parsonage consist of such Tithes And so of other things which in their own nature are Minutae may become Majores if all the profit of the Parish consist therein As in some Countries a great part of the Land within the Parish is Hemp or Lime or Hâ—ps there they are Great Tithes and so it may be of Wool and Lambs Pasch 3 Jac. B. R. in Beddingfield's Case Farmer to the Dean and Chapter of Norwich who had the Parsonage Impropriate and had used to have Tithes of Grain and Hay and the Vicar had the Small Tithes And a Field of 40 Acres was planted with Saffron and it was Adjudged That the Tithes thereof belong to the Vicar There was a Case in this Court as it was vouched by Henden 3 Jac. between Potman a Knight and another And the Question was for Hops in Kent and Adjudged that they were great Tithes but as for Hops in Orchards or Gardens these were Resolved to belong to the Vicar â—s small Tithes There was a Case in this Court for Tithe of Weild which is used for Dying and that was in Kent and it was sown with the Corn and after the Corn is reaped the next year without any other manurance the said Land brings forth and produces Weild And that was a Special Verdict whether the Vicar shall have the Tithe of it or the Parson but one of the parties died before any Judgment And if Tobacco be planted here yet the Tithes thereof are Minutae Decimae And all these new things viz. Saffron Hops Weild c. if it doth not appear by material Circumstances to the contrary shall be taken as Minutae Decimae And so this Case was Adjudged for the Defendant 33. In the Case of a Prohibition in case of a Libel in the Ecclesiastical Court for the Tithes of Cattels the Plaintiff alledged that those Cattel of which Tithes were demanded are for his Dairy and for the Plough and Winch being only present said That the Parson shall not have Tithes of such Cattel but if he breed up Cattel to sell it is otherwise Secondly the Plaintiff in the Prohibition alledged That time beyond memory the Parishioners had paid a halâ—â—â—â—or the Tithe of a Calf and a peny for a Cow and that upon a day limited they use to bring this to the Church and to pay this to the Vicar and now the Vicar had Libelled in the Ecclesiastical Court against them to compel them to bring it home to his housâ— And Winch said That this is no occasion of a Prohibition for they agree in the Mâ—dus but vary in the place of payment and this is not matter of substance and for that reason no Prohibition will lie 34. B. brought a Prohibition against C. and alledged that the Dean and Chapter of D. was seized of the Mannor and the Defendant being Vicâ—r sued in the Ecclesiastical Court to have Tithes and shewed that time beyond Memory c. they had held that Discharged of Tithes for them and their Tenants and that they lett that to the Plaintiff And it was moved by Henden Serjeant That the Dean and Chapter are a Body Politick and Temporal which are not capable of this Prescription in non Decimando Coke 2. the Bishop of Winchester's Case Hobart said That the Dean and Chapter are a Body Spiritual and are annexed to the Bishop throughout all England and if the Bishop is capable of that as it is plain he is then the Dean and Chapter is also capable of that which was granted by Hutton but Winch doubted for he said That he-may be a Lay-man and for that the Plaintiff ought to averr That he is a Spiritual person Hutton confessed That the Dean may be a Lay-man as was the Dean of Durham by special License and Dispensation of the King but that is rare and a Special Case and is not common and general and therefore not to be brought as an Example which was also granted by Hobart Chief Justice and upon that day was given over to the Defendant to shew cause wherefore the Prohibition shall not be granted 35. A. Libelled against W. in the Ecclesiastical Court for the Herbâ—ge-Tithe of young Cattel sâ—il for a peny for every one And Hitcham moved for a Prohibition and said that he ought not to have Tithes if they are young Beasts brought up for the Cart or Plough And so it hath been Adjudged As it a Parson prescribe to have Tithes for Hedgingstuff he cannot because that preserves the Land out of which he had Tithes and then a Parson Libels for Tithes of an Orchard for that it was a young Orchard and the Custome of the place was to pay 4 d. for an Orchard Hitcham said There is not any such difference between old and new Orchards for iâ— the Custome be that he shall pay 4 d. for every Orchard it will reach to the new Orchard And then he Libels for a Hearth-peny for the Wood burnt in his house Hutten said The Hearth-peny is more doubtful for it is a Custome in the North parts to give an Hearth-peny for Estovers burnt for
the question of Bastardy or Legitimacy ought to be first moved in the Kings Temporal Court and thereon Issue ought to be joyned there and then it ought to be transmitted by the Kings Writ to the Ecclesiastical Court to be examined and tried there and thereupon the Bishop shall make his Certificate to the King's Court to which Certificate being made in due form of Law such credit is given that the whole World shall be bound and stopt thereby But on the other side if any Suit to prove Bastardy or Legitimacy be first commenced in the Ecclesiastical Court before any Question of that matter hath been moved in he Kings Temporal Court in that Case Prohibition lies to restrain such Suit To this purpose was Corbet's Case cited 22 Ed. 4. Fitz. Consultation 6. Sir Robert Corbet had Issue two Sons Robert and Roger Robert the eldest Son being within the age of fourteen years took to Wife Matild with whom he cohabited till he came of full Age and they publickly known and reputed for Husband and Wife yet afterwards Robert the eldest Son doth dismiss the said Matild and she living doth Marry one Lettice and having Issue a Son by the said Lettice dies after his death Lettice doth publish and declare openly that she is the lawful Wife of Robert and that his Son was a Mulier and legitimate Whereupon Roger the younger Son of Sir Robert Corbet doth commence a Suit in the Ecclesiastical Court to reverse the Marriage between Lettice and Robert and to put Lettice to silence c. wherefore Lettice doth purchase a prohibition Whereupon Roger sets forth the whole matter and prays a consultation which was denied him and for this reason chiefly viz. for that the Suit in the Ecclesiastical Court was to Bastardize the Issue between Lettice and Robert and to prove Roger to be Heir to Robert and the Original Action of Bastardy shall not be first moved in the Ecclesiastical Court but in the Temporal Court c. And to make this point yet the more clear two Cases put by Bracton lib. 5. tit de exceptionib c. 6. were remembred 1 B. having Issue of the Body of a Feme-Inheretrix born before Marriage under colour whereof he claimed to be Tenant by the Courtesie but being for that cause barr'd in an Assize brought by him against A. he obtain'd the Popes Bull and by authority thereof commenced his Suit in the Ecclesiastical Court to prove his Issue legitimate quod facere non debuit as Bracton there saith and therefore prohibition was granted to stay the Suit shewing the whole matter Et quod praedictus B. ad deceptionem Curiae nostrae ad infirmandum judicium in curia nostra factum trahit-ipsum A. in placitum coram vobis in Curia Christianitatis authoritate Literarum domini Papae ad praedictum puerum legitimandum c. Et cum non possint Judices aliqui de legitimatione cognoscere nisi fuerit loquela prius in curia nostra incepta per breve ibi Bastardia objecta postea ad Curiam Christianitatis transmissa vobis prohibemus quod in placito illo ulterius non procedatis c. And in the same Chapter Bracton hath the form of another Prohibition which makes the difference before put more evident Rex talibus judicibus c. Ostensum est nobis ex parte A. c. quod in causa successionis haereditatis petitione debet prius moveri placitum in curia nostra cum ibi objecta fuit Bastardia tunc deinde transmitti debet recordum loquelae cognitio Bastardia ad curiam Christianitatis ut ibi ad mandatum nostrum de legitimitate inquiratur quod quidem in hac parte non est observatum Et cum hoc sit manifeste contra Consuetudinem Regni nostri c. vobis prohibemus c. whereby it is very evident that if the Ecclesiastical Court proceed to the examination of Bastardy or Legitimation without direction of the Temporal Court it is to be restrained by a Prohibition 3. As the Ecclesiastical Judge may not enquire of Bastardy or Legitimation without special direction or command of the King so when he hath received the Kings Writ to make such Inquisition he ought not to surcease for any Appeal or Inhibition but ought to proceed until he hath certified it into the Kings Court and this also appears by Bracton in the forecited place c. 14. Cum autem Judex Ecclesiasticus Inquisitionem fecerit non erit ab eo appellandum nec à petente nec à tenente à petente non quia talem Jurisdictionem talem judicem elegit à tenente non qui sic posset causam in infinitum protrahere de judice in judicem usque ad Papam sic posset Papa de Laico feodo indirecte cognoscere See also to this purpose 39 E. 3. 20. a. in a Writ of Dower where Ne unques occouple en loyal Matrimony was pleaded and Issue thereupon joyn'd the Writ issued to the Bishop to certifie who certified that he could do nothing by reason of an Inhibition which came to him out of the Arches This return was held insufficient for it was there said that he ought not to surcease from doing the Kings command by reason of any Inhibition 4. Lastly it was said that the very cause and reason why the Ecclesiastical Judge may not enquire of Legitimation or Bastardy before that he hath received direction or a mandate out of the Kings Temporal Court doth consist in this that the Ecclesiastical Court never hath Jurisdiction or power to intermeddle with Temporal Inheritance directly or indirectly It being observed that Christ himself refused to meddle with a Cause of that nature when upon request made to him Luke 12. Magister dic fratri meo ut dividat mecum haereditatem he answer'd Quis me constituit judicem aut divisorem super vos And therefore in the time of King H. 3. when the usurped Jurisdiction of the Pope was elevated much higher than ever before or since in the Dominions of the King of England Pope Alex. the third having granted a Commission to the Bishops of Winchester and Exon to enquire de Legitima nativitate of one Agatha the Mother of one Robert de Ardenna and if she were found legitimate then to restore to the said Robert the possession of certain Lands whereof he was dispossess'd being informed that the King of England was greatly offended at the said commission he revoked and countermanded it in the point of the restitution of possession knowing and confessing that the establishment of Possessions belonged to the King and not to the Church Which Case is reported in the Canon Law Decretal Antiq. Collect. 1. lib. 4. tit Qui filii sunt legitimi cap. 4. and cap. 7. where in the 4 th Chapt. the Commission and in the seventh Chapt. the revocation or countermand appears in express terms CHAP. XXXVI Of Divorce as also of Alimony 1. What Divorce
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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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
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
p. 31. Sect. 12. Several things incident to a Bishop qua talis p. ibid. and Sect. 13. In what respects his Jurisdiction is not meerly local p. 32 33. Sect. 15. The Dignity and Precedency of Bishops here in England p. 35. Sect. 19. Their precedency among themselves p. 13. Sect. 1. Their Capacity of Temporal Jurisdiction restored p. 36. Sect. 20. They were anciently invested per Annulum Baculum p. 24. Sect. 3. and p. 29. Sect. 8. Bishops of London Deans of the Episcopal Colledge p. 38. Sect. 22. Bishopricks in England all Founded by the Kings of England p. 24. Sect. 3. How many iu England p. 12 13. Sect. 1. They were anciently Donative p. 24. Sect. 3. and p. 29. Sect. 8. Their Patronage is in the King ibid. How the Bishopricks of Wales became annexed to the Crown of England p. 28. Sect. 6. They were erected into Baronies by King William the Conqueror p. 35. Sect. 19. Blasphemy what whence so called Threefold the severe Punishments inflicted thereon p. 559 560. Sect. 1 2 3. Bona Notabilia what p. 104. Sect. 6. Bricks whether Tithable p. 390. Broom in what Case Tithable or not p. 390. Buck and Doe not Tithable yet payable for Tithe p. 361. Sect. 20. and p. 380. Sect. 75. Bull or the Popes Bull whence so called p. 341. Sect. 3. Burial in the Body of the Church who hath right to License it p. 139. Sect. 5. Whether any thing payable to the Parson for Burial of him out of his Parish that died in his Parish p. 188. Sect. 5. Burglary to enter a Church by Night with an intent to steal p. 141. Sect. 8. C. CAerlegion in Wales anciently the Metropolis of Britannia Secunda p. 16. Sect. 4. Calves how Tithed and when and what kind of Tithes they yield p. 390. Camois or Sir John de Camois the remarkable Case of his demising his Wife p. 474. Sect. 11. Canon-Law when and how first introduced into England p. 129 c. Sect. 44. Where and by whom it was first read in this Kingdom p. 132. Sect. ibid. Whether it be any part of the Law of England p. 585 586. Sect. 3. p. 131. Sect. 44. Canons anciently made by the Kings of this Realm without the Pope p. 6. Sect. 8. They were ever called the Kings Canons not the Bishops p. ibid. They cannot be made nor oblige the Subject without the Royal assent p. 7. Sect. 11. and p. 99. Sect. 2. They may not be repugnant to the Kings Prerogative nor to the Laws or Customes of the Realm p. ibid. p. 9. Sect. 14. p. 163. Sect. 5. p. 192. Sect. 15. p. 589. Sect. 6. What Canons in force 1 Ed. 6. p 585. Sect. 2. They are the Ecclesiastical Laws of the Land p. 112. Sect 9. Canterbury anciently the Royal City of the Kings of Kent p. 13. Sect. 1. when first declared to be the Metropolitan Church of England Scotland and Ireland p. 20 Sect. 13. Cathedrals whence so called p. 347. Sect. 1. Cathedraticum what and how it differs from Procurations p. 72. § 9. the original thereof ib. Cattel in what cases tythable or not and the Herbage thereof p. 390 391. p. 366. Sect. 33. p. 367. § 35. whether young Cattel are tythable ib. p. 370 371. § 43. whether the Herbage of Barren Cattel be tythable p. 373. § 46. Caveat entered against an Institution to a Benefice whether it makes void such Institution made after the entring of the Caveat p. 276. § 34. p. 280. § 18 whether a Caveat entred in the life time of an Incumbent be void ib. Cautione admittenda what that Writ imports and the effect thereof in Law p. 648. § 10. Certificate of the Bishop requisite in a Plea of Bastardy p. 484. § 13. in what Case traversable p. 88. § 12. Cession what p. 286. § 9. where Cognizable p. 122. § 11. Chalk whether tythable p. 391. Chancel by whom to be repaired p. 143. § 10. p. 175. § 4. In whom the Freehold thereof 〈◊〉 p. 150. § 22. Chancellor of a Diocese a description of his Office p. 81. § 1. What matters cognizable by him p. 85. § 10. The original and use of that Office p. 81 82. § 2. What the Canons enjoyn concerning such p. ibid. § 3. Why called the Bishops Vicar General p. 81. § 1. Whether a Divine not experienced in the Civil and Canons Laws may be a Chancellor p. 82 83. § 4. Chaplains whether the King Queen Prince and Children of the Blood Royal may retain as many as they please p. 294. § 3. How many the Archbishop of Canterbury may retain ibid p. 21. § 13. and p. 32. § 13. How many retainable by a Bishop ib. How many by a Duke Marquess Earl and other persons of honour p. 294. Sect. 3. Chappel whence that word p. 145 146. Sect. 15. How many kinds thereof ibid. What a Chappel of ease and what a Free Chappel is and by whom visitable Sect. ibid. The Imperial Law touching the building of Chappels p. 146. Sect. 17. Chapter what p. 56. Sect. 8 c. The difference between Capitulum and Conventus p. 58. Sect. 9. Charles Martell the first that violated the Church in point of Tithes p. 354. Sect. 7. Charter of William the Conquerour touching Consistories p. 84. Of King John touching the Election of Bishops p. 183. Sect. 10. Of King H. 8 touching Pentecostals p. 74. Chaunter and Chauntry what p. 392 c. Sect. 6. Certain differences in Law touching Chauntries p. 331. Sect. 8. Cheâ—se in what Case to be Tithed or not p. 391. Cherry-Trees where adjudged Timber and Tithe-free p. 392. Chicken how Tithable or not p. 392. Child how reputed legitimate or not as to the time of it's Birth in computation from the time of its conception p. 484. Sect. 12. Chorepiscopi what p. 30. Sect. 11. Christmas-day whether Arrests may be made thereon p. 115. Sect. 12. Church none such in Law until Consecration p. 142. Sect. 9. Anciently a Sanctuary p. 141. s 8. Threefold p. 136. s 1. Church-Lands prohibited by the Imperial Law from being alienated p. 136. s 2. In whom the Freehold of the Church and Church-yard is p. 137. s 3. Churchwardens by whom Eligible and wherein their Office consists p. 160 c. Sect. 1. p. 162. s 4 5. p. 168. s 21. p. 166. s 14. Whether they are a Corporation in Law p. 162 163. s 5. p. 164. s 11. and whether as such they may take Lands to the use of the Church p. 167. s 17. p. 168. s 22. What power they have touching Seats in the Church p. 140 141. s 7. What Actions may lie for or against them p. 161. s 2. p. 163. s 7 8. p. 167. s 18. p. 168. s 20. p. 186 187. s 3. Before whom they are to make their Account p. 161. s 1. p. 166. s 16. p. 167. s 19. Whether the New Church-wardens may have Action for Trespass done in their Predecessors time p. 162. s
The causes thereof p. 206 207. Sect. 2. Where cognizable p. 122. Sect. 21. Whether a Bar to Tithes due before p. 398. Whether the Church be void pending the Appeal from a Sentence of Deprivation p. 314. Sect. 17. Delegates-Court how Constituted p. 117. Sect. 13. Whether they may Excommunicate or grant Letters of Administration p. ibid. Dilapidation what p. 173. Sect. 1 2 3. The remedies in Law against it and how many ways it may happen ibid. Whether it be a sufficient cause of Deprivation p. 175. Sect. 5 9. and p. 315. Sect. 19. Diocess whence that word derived p. 101. Sect. 3. What it properly signifies p. 275. Sect. 8. Discharge of Tithes how many ways it may be p. 398. In what Cases it may be or not p. 358. Sect. 12. p. 368. Sect. 38. Dispensation the true definition thereof p. 112. Sect. 9. By whom Dispensations may be granted and in what Cases p. 107 c. Sect. 8. Anciently had from the Court of Rome ibid. It may be without the word Dispensamus p. 302. Sect. 18. They are grantable by the King qua talis p. 5. Sect. 7. p. 109. Sect. 8. The granting thereof is eminently in the Crown p. 6. Sect. 9. The Archbishop of Canterbury may be Statute grant them ibid. p. 19. Sect. 11. The difference between such granted by the Pope formerly and those granted by the King now p. 293. Sect. 2. In what Case grantable by the Guardian of the Spiritualties p. 40. Sect. 3. What remedy in Law in Case he refuse so to do ibid. Divorce what 493. Sect. 1. The Causes thereof ibid. Whether if for Adultery it dissolves the Marriage à vinculo p. 495. Sect. 3 c. Donative Churches what p. 202. Sect. 16. The Original thereof p. ibid. By whom visitable p. 34. Sect. 18. The Law concerning Donatives p. 262. Sect. 18. How they cease to be such and become Presentative p. 201. Sect. 16. and p. 263. Sect. 21. Whether a Donative in the Kings gift may be with Cure of Souls p. 218. Sect. 23. Dotards whether Tithable p. 405. Doves in a Dove-house what Tithes they pay p. ibid. Druids their Idol-Temples when first abolished in England p. 16. Sect. 4. Drunkard whether actionable to call one so p. 516. Sect. 3. p. 521. Sect. 14. Dubritius Archbishop of Carlegion in Wales p. 17. Sect. 6. Duplex Querela what p. 275. Sect. 8. E. ECclesia whence that word derived p. 136. Sect. 1. Ecclesiastical Laws of England the Antiquity thereof p. 129 c. Sect. 44. Edgar King his Zeal for the Church in his Oration to the Clergy of England p. 97. Sect. 1. Eggs how when and in what Case Tithable p. 405. Election of Bishops how and by whom to be made p. 43. Sect. 2. Eleutherius Pope what style be gave K. Lucius p. 4. Sect. 4. p. 111. s 8. Elopement what it signifies p. 508. Sect. 13. Episcopal Authority derived from the Crown p. 30. Sect. 10. Episcopal Jurisdiction endeavoured to be taken away p. 36 37. Sect. 2. Episcopocide in a Clerk Petty Treason p. 35. Sect. 19. Estovers burnt in a house whether Tithable p. 372. Sect. 46. p. 392. Ethelbert King of Kent by whom Canterbury was given to St. Austin for his See p. 13. Sect. 1. p. 17. Sect. 5. Whether he built St. Pauls Church in London p. 17. Sect. 7. Ethelwolph Son and Successor to Egbert the first sole King of England he was Bishop of Winchester p. 36. Sect. 19. And the first that enriched the Church of England with Tithes p. 348. Sect. 1. Euginus whether he were the first that styled himself Pope the first that consecrated Churches and the first that decreed Godfathers and Godmothers in Baptism p. 49. Sect. 7. Examination when and by whom to be performed p. 270 Sect. 1 3. Excommunication what p. 624. Sect. 1 2. Twofold ibid. What intended by Excommunication ipso facto p. 626. Sect. 4. What the causes in Law of That Excommunication p. 628. Sect. 8. In what manner Excommunication is to be pronounced p. 626. Sect. 6. By whom it is to be certified and how p. 635. Sect. 18. Whether the Ordinary may take Bond of an Excommunicate for his submission in order to absolution p. 637. s 25. whether Excommunication in a Patron be sufficient cause for a Bishop to refuse the Clerk presented by such Patron p. 266. Sect. 32. F. FAculty or Court of Faculties or Faculty Office what p. 107. Sect. 8. The Archbishop of Canterbury impower'd by the Statute to grant Faculties ibid. and p. 19. Sect. 11. The force and efficacy thereof to Commendams or two Benefices p. 107 109 110. Sect. 8. The difference between a Faculty to Take and a Faculty to Retain a Benefice p. 110. Sect. 8. Fallow-grounds whether Tithable p. 405. Fees for Probate of Testaments what due by Statute p. 105 106. Sect. 6. Fâ—nny-Lands drain'd whether they pay Tithes presently p. 406. Ferae naturae Creatures of that kind whether Tithable p. 405. First-fruits by and to whom payable p. 337. Sect. 2. vid. Annates Fith taken in the Sea or in a River Pond or Piscary whether Tithable and how p. 406. and p. 367. Sect. 36. p. 379. Sect. 68. p. 375. Sect. 53. Flamins how many anciently in England p. 16. Sect. 4. Flax what Tithes it pays and when p. 407. Forest-Lands whether Tithable or not and by whom p. 407 408. Not scituate in any Parish to whom the Tithes shall be paid p. 408. Whether Priviledg'd from Tithes whilst in the Kings hands otherwise in the Subjects p. 369. Sect. 41. Whether they are Priviledged from Tithes if in the hands of the Kings Patentee or Grantee p. 399. 401. Fowl taken in what Case Tithable or not p. 408. Fraud in setting forth Tithes whether treble dammages in that Case p. 380. Sect. 72. p. 381. Sect. 76. Freehold f the Church or Chancel in whom it is p. 137. Sect. 3. p. 83. Sect. 4. p. 139. Sect. 5. p. 142. Sect. 9. p. 150. Sect. 22. p. 151. Sect. 25. p. 155. Sect. 38. Frigidity in the Man pleaded by the Woman how the Civil Law proceeds thereon p. 493. Sect. 1. Fruit-Trees what Tithes they pay and when p. 408. Fuise whether Tithable p. ibid. G. GArba or Decima Garbarum what it signifies p. 381. Sect. 78. Gardens how Tithable p. 409. p. 371. Sect. 43. Geoffry Plantaginet Son to King H. 2. was Bishop of Lincolne p. 36. Sect. 19. Glass-windows Painted in the Isle of a Chappel if pulled down whether Actionable p. 138. Sect. 5. Gleab what p. 409. The Law concerning the Tithes thereof ibid. p. 410. Gleab of a Parsonage Impropriate and Leased whether Tithable ibid. p. 368. sect 38. Whether Gleab in Lease pays Tithe p. 362 363. s 26. Whether the Freehold of the Gleab during a Vacancy be in the Patron or not p. 183. s 9. Gleab manured and sowed by an Incumbent that dies before Harvest who shall have the Corn p. 318. s 3. Godfathers
Cognizable p. 137. Sect. 3. 4 p. 143. Sect. 10. p. 152. Sect. 26. In what Case it may be Cognizable at the Common Law p. 166. 15. Whether within the Cognizance of the Archdeacons Visitation p. 60. Sect. 7. Who and what shall be charged with such Reparations and how p. 137 138. Sect. 4. p. 144. Sect. 11. p. 145. Sect. 14. p. 147 148. Sect. 19. p. 150. sect 23. p. 152. Sect. 26. p. 175. Sect. 4. p. 153. Sect. 30. p. 157. Sect. 41. p. 149. Sect. 22. How the Tax for such Reparations shall be apportioned between Landlord and Tenant p. 154. Sect. 34. By whom the Chancel shall be Repair'd p. 175. Sect. 4. Inheritances not to be therewith charged in perpetuum p. 144. Sect. 13. Whether a Tax for such Reparations may be made by the Church-wardens only p. 148. Sect. 20. How to be in Case of Union of Churches p. 146. Sect. 16. How in respect of the Fabrick of the Church in distinction from that of the Ornaments thereof p. 154. Sect. 34. Whether those of a Chappel of Ease shall contribute to the Repairs of the Mother-Church p. 146. Sect. 16. p. 152. Sect. 28. p. 153. Sect. 33. p. 156. Sect. 39. p. 152. Sect. 28. Whether the Land next adjoyning â—o a Church-yard shall Repair the Fences thereof p. 166. Sect. 15. Residence in what Cases not required p. 320. Sect. 9. Resignation what p. 284. Sect. 3. Resignation-Bonds whether good in Law p. 189. Sect. 7. What words sufficient in Law to import a Resignation p. 191. Sect. 13. To whom it may be made p ibid. How and to whom the Resignation of a Donative may be made p. 191. Sect. 14. Whether it may be made conditionally p. 278. sect 14. Whether the Church becomes void thereby before the Bishop accepts it p. 261. Sect. 17. Review or the Court of Review or Commission Ad Revidendum p. 118. Sect. 15. The Ground thereof p. 4. Sect. 5. Revocations in Law of the Kings Presentation p. 266. Sect. 31. Right of Advowson how and for whom that Writ lies p. 649. Sect. 22. Right of Tithes Cognizable in the Ecclesiastical Court p. 127. Sect. 42. Rogation-weck whence so called with the Original thereof p. 130. Sect. 44. Roots of Coppice-wood grubbed up whether Tithable p 437. S. SAcriledge what whence so called how many ways it may be committed and the severe punishments thereof p. 528 c. The Sacrilegious were not anciently allowed the Sanctuary p. 141. sect 8. Saffron what Tithes it pays p. 438. To whom whether as great Tithes to the Parson or as small Tithes to the Vicar p. ibid. p. 198. Sect. 8. p. 361. Sect. 21. p. 366. Sect. 32. Salary of a Chaplain Triable in the Ecclesiastical Court p. 198. Sect. 4. Salt whether Tithable p. 438. Simpson whether the first Archbishop of York by whom established p. 14. Sect. 2. Sanctuary the Law thereof anciently p. 141. Sect. 8. Heretofore the foundation of Abjuration ibid. Not allowed to Traitors nor Sacrilegious persons p. 142. Sect. 8. Saxon Kings their care for the Government of the Church of England p. 97. Sect. 1. Their zeal for erecting and endowing of Churches p. 208. Sect. 4. How severely they punish'd Adultery p. 470. Sect. 4. Scotland when the Bishops thereo revolted from the Archbishop of York p. 14. Sect. 2. Seals of Office of Bishops c. how to be engraven and used p. 27 28. § 5. Scutcheon or Banners taken out of the Church by the Parson whether and for whom Action lies in that Case p. 61. Sect. 2. Seats in Churches p. 137. Sect. 3. p. 138. Sect. 4. p. 142. Sect. 9. p. 154 155. Sect. 36. p. 147. Sect. 18. p. 149. Sect. 22. How and by whom to be disposed of p. 137. Sect. 3 4. p. 149. Sect. 21. p. 150. Sect. 22. p. 154. Sect. 36. p. 155 156. Sect. 38. They belong of Right to the Ordinary to dispose of p. 138. Sect. 5. p. 140. Sect. 7. p. 142. Sect. 9. p. 158. Sect. ult p. 157. Sect. 42. p. 151. Sect. 25. Whether the Ordinary hath any thing to do with Noble men's Seats in Churches p. 151. Sect. 25. p. 157. Sect. 42. Custome may as to the Body of the Church six the power of disposing the Seats in the Church-wardens p. 151. Sect. 25. The grant of such a Seat to a Man and his Heirs whether good in Law p. 138. Sect. 4. To whom the chiefest Seat in the Chancel properly belongs p. 141. Sect. 7. The Cognizance of Seats in Churches properly belongs to the Ecclesiastical Court p. 157. Sect. 42. Whether he who having Lands in the Parish but living out of the Parish be chargeable with the Repairs of the Seats of the Parish-Church p. 150. Sect. 23. Sees or Bishops Sees whence so called p. 347. Sect. 1. Sepulchres and Monuments in Churches or Church-yards how and where the defacing thereof is punishable p. 142. Sect. 9. Sheep the Law in reference to the Tithe thereof as also of their Pasture and their Wool p. 438 439. p. 464. p. 359 360. Sect. 16 17. Sidemen what their Office is p. 163. Sect. 6. Anciently called Synods-men or Testes Synodales p. ibid. Sect. 6. in the Margent Significavit what that Writ ought to contain p. 631. Sect. 10. p. 632. Sect. 12. p. 649. Sect. 19. p. 635. Sect. 21. Silva Caedua the Law in reference to the Tithes thereof p. 439 440. Simon the Monk of Walden supposed to be the first Canonist in England p. 132. Sect. 44. Simony whence so called a Description thereof p. 537. Sect. 1. How many ways it may be committed p. 539 540. Sect. 5. p. 541 542. Sect. 8. The penalty thereof p. 537. Sect. 1. A Barr in Law to the Parsons demand of Tithes p. 542. Sect. 10. p. 548. Sect. 17. p. 551. Sect. 26. p. p. 34. The difference in Law between Simoniacus and Simoniace promotus p. 538. Sect. 2. p. 552. Sect. 27. In what Case Simoniacal Contracts are Cognizable in the Ecclesiastical Court p. 120. Sect. 17. Slander where Cognizable p. 516. Sect. 4. Son whether he may succeed the Father in an Ecclesiastical Living p. 258. Sect. 10. p. 263. Sect. 20. Spoliation what and in what Case and for whom the Writ of Spoliation lies and where Cognizable p. 439. p. 650. Sect. 24. Striking in the Church or Church-yard how punish'd p. 139. Sect. 6. An Indictment for Striking in St. Pauls Church-yard p. 155. Sect. 37. Stork the History of that Jealous Bird and his revenge on his Adulterous Mate p. 475 476. § ult Stubble of Corn whether Tithable p. 394. Subscription to the 39 Articles what not good p. 163. § 8. Sufficiency or Insufficiency in an Ecclesiastical Officer where Cognizable p. 92. 93. § 19 20. Suffragan Bishops anciently invested by the Ring without the Staff p. 25. § 3. Their use and Office p. 30 31. § 11. Suggestion for a Prohibition in what Case it need not be proved within Six Months p. 374. §
possession p. 272. Sect. 5. Three Writs at Common Law against an Usurper and what they are p. 205. Sect. 1. W WAges of Servants whether Tithable p. 457. Wall of the Church-yard by whom to be repaired p. 144. Sect. 11. Wales when first subject to the Archbishoprick of Canterbury p. 17. Sect. 6. Waste Pastures in what case Tithable or not p. 457. Wax or Bees-Wax how to be Tithed p. 457. Way obstructed for carrying of Tithes Cognizable in the Ecclesiastical Jurisdiction p. 382. Sect. 82. vid. p. 394. Weapons drawn in the Church or Church-yard how punished p. 139. Sect. 6. Indictments thereon discharged and why p. 149. Sect. 22. p. 155. sect 37. Weild or Woad for Diers to whom the Tithe of that Dying Plant belongs whether as Great Tithe to the Parson or as Small Tithe to the Vicar p. 366. sect 32. p. 381. s 77. p. 457 458. westminster-Westminster-Abbey by whom Founded p. 328. sect 5. When the Revenues thereof were first vested in a Dean and Chapter of the Collegiate Church thereof p. 15. s 3. How it became Originally the place of Consecration and Coronation of the Kings of England p. 6. Sect. 8. Whitson-Farthings what and when paid p. 73. Sect. 10. Whore whether Actionable and where to call one so p. 519. Sect. 9. Willows whether Tithable p. 457. Witness one single Witness disallowed in the Ecclesiastical Court for sufficient proof whether Prohibition lies in that case p. 113 114. Sect. 11. p. 115. Sect. 12. p. 116. Sect. 12. p. 123. Sect. 26. p. 128. Sect. 43. Witch or the Son of a Witch whether those words are Actionable p. 524. Sect. 24. Wolsey Cardinal impower'd by the Popes Bull to retain the Archbishoprick of York and the Abbey of St. Albans in Commendam p. 111. Sect. 8. Wolstan Bishop of Worcester his Resolute Answer to King William the Conquerour p. 97. Sect. 1. Wood the Law in reference to the Tithe thereof p. 458 to 462. Computed among the Predial and Great Tithes by whom payable whether by the Buyer or the Seller whether due for Fuel spent in the Parishioners house p. ibid. In what sense it may be either Great or Small Tithes p. 365 366. Sect. 32. Whether Wood Tithable at the Common Law p. 372. Sect. 46. Wood for Hedging and Firing whether Tithable p. 369 370. Sect. 42. In what case the Vicar may have the Tithe thereof p. 381. sect 79. Wool the Law in reference to the Tithes thereof p. 198. sect 3. p. 359. sect 16. p. 366. sect 32. Of Sheep pastured in divers Parishes p. 462 c. Of Rotten Sheep whether Tithable p. 359. sect 15. Worcester-Church anciently a Priory p. 74. sect 10. Words of Contention in the Church or Church-yard how punished p. 139. sect 6. Writ of Right of Advowson for whom it lies p. 214 215. sect 17. The Writ De Haeretico Comburendo when taken away and abolished p. ult sect ult Y YOrk the Original of that Metropolitan See p. 14. sect 2. It anciently had a Metropolitan Jurisdiction over all the Bishops in Scotland p. 18. sect 9. ERRATA PAg. 25. lin 25. read Potestatem p. 35. l. 2. Archidiaconum p. 200. l. 37. Provenues p. 203. l. 7. Vicaria p. 205. l. 5. be with the Cure p. 209. l. 3. An. 1505 p. 285. l. 17. to his Father by the true p. 293. l. 31. too late p. 403. l. 38. Mepham's Canon p. 448. l. 23. to the Parson p. 470. l. ult Adulterum p. 471. l. 7. Hoel Dha p. 439. l. 15. Cognatio p. 497. l. 11. Adulterous Wife p. 501. l. 7. Thore p. 503. l. 6. Viro p. 530. l. 40. Crown p. 543. l. 18. Pardon l. 40. Doctors Advertisement THE ORPHANS LEGACY or a Testamentary Abridgment in Three parts viz. 1. Of Last Wills and Testaments 2. Of Executors and Administrators 3. Of Legacies and Devises Where the most material Points of Law relating to that subject are succinctly Treated as well according to the Common and Temporal as Ecclesiastical and Civil Laws of this Realm Illustrated with a great variety of select Cases in the Law of both Professions as well delightful in the Theory as useful for the practice of all such as study the one or are either active or passive in the other By the Author
by the Court that this is a Pension for which Suit shall be in the Ecclesiastical Court 42. In the Case between Draiton and Cotterill against Smith for a Prohibition it was said by Coke Chief Justice That if the Parson sues in the Ecclesiastical Court for Tithes and the other pleads a Modus to the Vicar this Modus now can never come in question by this Suit between the Parson and him for Tithes due unto the Parson but this is to be questioned and determined there in the Ecclesiastical Court to whom the Tithes do belong whether to the Parson or to the Vicar And this hath been divers times Adjudged in this Court and in the Court of C. B. in Bushe's Case for Pankeridge-Church and it hath always been clearly held That if the Right of Tithes come into question between the Parson and the Vicar to which of them the same doth belong This is a Suit properly belonging to the Ecclesiastical Court to hear and determine the same and in such case they are not there to be ousted of their Jurisdiction And this being now a Question between the Parson and the Vicar to which of them Tithes did belong for which the Modus is alledged to be paid therefore no Prohibition is to be granted in this case though there be a Modus suggested to be paid unto the Vicar for all Tithes here due to the Vicar and Parson the Parson suing for the Tithes there as due unto himself and not unto the Vicar And so the Question is as touching the Right of Tithes between the Parson and the Vicar which is a Suit proper for the Ecclesiastical Court And this is to be observed for a sure Rule in such a Case never to have a Prohibition granted The Reason of this is because that the Modus suggested to be paid cannot come in question upon this Suggestion of this payment unto the Vicar but only the Right of Tithes to whom they belong whether to the Parson or to the Vicar and divers Judgments have been accordingly given in the like Case And so by the Rule of the whole Court a Prohibition was denied 43. Whether and how far and in what manner the Ecclesiastical Court may exercise its Jurisdiction in cognizance of a Modus Decimandi is at large argued and debated at the Bench in Harding's Case against Goseling where in a Prohibition to stay Proceedings in the Ecclesiastical Court upon a Suit there for Tithes where G. Libelled against H. for a Modus Decimandi being not paid and there H. alledged another Modus Decimandi which Allegation the Ecclesiastical Court refusing to admit a Prohibition was thereupon prayed in B. R. In this case Doderidge Justice said That the Modus Decimandi is as well due to the Parson as Tithe is at the Common Law and if the Parson do Libel in the Ecclesiastical Court for a Modus Decimandi as he may do and another Modus is there alledged and this refused the Ecclesiastical Court may try and determine this matter touching this Modus and no cause to grant a Prohibition for this Refusal But if the Ecclesiastical Court doth deny to admit the Allegation for the Modus upon this ground only because the practice of the Ecclesiastical Law and our Law do differ in the manner of Proof as for default of two Witnesses one being allowed at Common Law but not at the Ecclesiastical Law In this Case a Prohibition is grantable but otherwise the Ecclesiastical Jurisdiction may as well try the Modus Decimandi as the Right of Tithes But if a Parson doth Libel there for Tithes in kind and a Modus is alledged and there pleaded but refused to be admitted or allowed in that Case a Prohibition is grantable upon such Refusal Haughton Justice In this Case a Prohibition ought to be granted otherwise in such cases upon every small difference alledged in the Modus that Court may try and determine the validity of every Modus Decimandi which the Ecclesiastical Court cannot do by the Law for that Court is not permitted by our Law to try a Modus Decimandi and therefore that Court proceeding to try this Modus which is determinable by Common Law and not in the Ecclesiastical Court a Prohibition ought to be granted But Doderidge Contra No Prohibition is in this case to be granted for the Ecclesiastical Court may well try and determine this Modus by that Law The Libel being there originally for the Modus But if touching the Proof of this Modus as aforesaid the difference of proceedings between the two Laws one Witness being sufficient at the Common Law not so at the Ecclesiastical be the ground of the Refusal of the Allegation then a Prohibition is to be awarded so is 1 R. 3. and 10 H. 7. but if the Ecclesiastical Court only proceed to try the Modus for which the Libel was there this by Proof may well be there examined Croke Justice at this time delivered no opinion at all in this Case Afterwards this Case being moved again Doderidge If a Parson do Libel in the Ecclesiastical Court for a Modus whereas in truth there was no Modus but only a composition of late time between the Parson and the Parishioners to pay so much yearly for Tithes and not otherwise In this Case because that the Common Law and the Ecclesiastical do differ in the point of Prescription Ten years continuance being a good Prescription by that Law but not so by Ours in this case a Prohibition is grantable Houghton A Modus Decimandi is properly to be tried and determined by the Common Law and not in the Ecclesiastical Court for that these two Laws differ in many things as in point of proof of a Modus and in the point of Prescription Croke A Special Modus being Libelled for in the Ecclesiastical Court is there to be tried Doderidge If the Ecclesiastical Court doth refuse to allow of the Proof allowable at the Common Law a Prohibition lies to stay proceedings for Tithes there And where there is a Modus if they refuse to pay this the Parson may sue for this Modus in the Ecclesiastical Court and this is to be tried there But if in such case where there is a Modus if the Parson will Libel to have his Tithe in kind and the other shews there this Modus which they will not allow of a Prohibition lies and this shall be tried by the Common Law The Court declares That they would see the Suggestion and therefore by the Rule of the Court they were to make their Suggestion and to shew the same to the Court as they would stand unto it and in the mean time the Suit in the Ecclesiastical Court to be stayed 44. To conclude this Chapter it may not be impertinent to enquire when and how the Canon Law was introduced into this Realm of England In the Case of a Commendam that was Adjudged in Ireland it was observed That after the