1 Jac. cap. 3. vid. 17 Ed. 3. cap. 40. 2. The Congé d'Eslire being granted to the Dean and Chapter they proceed accordingly to Election which in the sense here intended as appropriated to this Subject is that Regular Choice which is made of an Ecclesiastical person to succeed in the office and dignity of Bishop in and of that Diocess whose See at the time of such Election is vacant This Election referring to an Episcopacy or the choice of a new Bishop in a vacant See is done by a Dean and Chapter but there are also other Elections Ecclesiastical relating to a Regular choice of other persons to other Offices and Dignities in the Church subordinate to the former but here it is specially meant of such an Election or choice of a new Bishop as is precedent to Confirmation Consecration and Investure or Instalment being made as aforesaid by the Dean and Chapter of a Cathedral Church by vertue of the Kings License and Letters Missive according to his Majesties nomination and pleasure contained in such Letters Missive in pursuance of such License to Elect under the Great Seal of England which Election being made accordingly the Dean and Chapter are to return a Certificate thereof under their Common Seal unto his Majesty This Election alone and of it self be it to an Archbishoprick or Bishoprick if the person Elected were before the Parson or Vicar of any Church Presentative or Dean of any Cathedral or held any other Episcopal Dignity doth not ipso facto make void in Law such former Benefice or Dignity or Deanry because he is not compleat and absolute Bishop meerly by such Election but only Bishop Elect And an Election only of such one to a Bishoprick who had before a Benefice with Cure or any other Ecclesiastical Dignity or promotion doth not make a Cession thereof And it hath been adjudged that a Commendam retinere made to such a person of such a Parsonage Deanry or other dignity Ecclesiastical which the said Parson had before his Election to the Bishoprick is yet good to him notwithstanding such Election and so remains good to him until his Consecration 3. Confirmation hath various senses according to the different Acceptation of the word but here it is mainly intended for that which in order to an Investure of a Bishop is done by the Archbishop or Metropolitan of that Province in which a Bishoprick is void and unto which a new Bishop is to be Invested with such usual Benedictions and Ceremonies as are requisite to the same Note That before an Archbishop or other Bishop is Confirmed Consecrated or Invested he must take the Oath of Fealty unto the Kings Majesty only after which the King under his Great Seal doth signifie his Election to one Archbishop and two other Bishops otherwise unto four Bishops within his Majesties Dominions thereby requiring them to Confirm his Election and to Consecrate and Invest the person Elected After which Confirmation and Consecration he is compleat Bishop to all intents and purposes as well to Temporalties as Spiritualties And now he hath plenam potestatem tam Jurisdictionis quam Ordinis and may therefore after his Consecration certifie an Excommengment and upon his Confirmation the power of the Guardian of the Spiritualties doth cease and a Writ for Admission of a Clerk to a Benefice awarded Episcopo Electo Confirmato hath been held to be good Likewise the King may by his Letters Patents after such Confirmation and before Consecration grant unto such Bishop his Temporalties which Grant from his Majesty is held to be potius de gratia quam de jure but if the Bishop of one Diocess be translated to a Bishoprick in another there needs no new Confirmation of him In the Canon de Confirmatione Episcoporum of Othobon's Constitutions it is Ordained in haec verba viz. Vt cujus Electionis Episcopalis Confirmatio postulatur inter caetera super quibus Inquisitio Examinatio praecedere debet Secundum Canonum Instituta illud exactissime inquiratur utrum plura Beneficia cum animarum cura qui Electus est antequam eligeretur habuerit Et si habuisse inveniatur an cum eo super hoc fuerit dispensatum Et an Dispensatio si quam exhibuerit vera sit ad omnia beneficia quae obtinuit extendatur Et si in aliquo Praemissorum is ad quem Confirmatio spectat Electam deficere sua discussione compererit eidem nullatenus munus Confirmationis impendat 4. There is also Confirmation of another kind and far remote in sense from the former not of any Ecclesiastical consideration nor of any Affinity with the other otherwise than Nominal and that is the ratifying or confirming of an Office or an estate in a Place or Office to one who hath or formerly had the possession thereof by a good Title but voidable though not actually and at present void To explain this A Bishop grants his Chancellorship by Patent to one for term of his Natural life this Grant is good to the Patentee and not in it self void yet upon the Bishops death it is voidable unless it be corroborated and ratified by the Confirmation of the Dean and Chapter This is not the Confirmation here intended but the Confirmation of the Election of a new Bishop in order to his Consecration and Investure which though heretofore was by the Bishop of Rome when he claimed a Spiritual Jurisdiction in this Realm yet now since the Stat. of 25 H. 8. c. 20. the same is at his Majesties Command performed by the Archbishop or Metropolitan of the Province wherein such Bishoprick is void and two other Bishops otherwise by four such Bishops within his Majesties Dominions as to whom under his Broad Seal he shall signifie such Election commanding them to Confirm the same as also to Consecrate and Invest the person whose Election to the Bishoprick is so Confirmed as aforesaid 5. The Confirmation of the Election of Bishops to vacant Sees according to the Canon Law and as practised in such Kingdoms beyond Sea where the Pope doth claim and exercise a Spiritual Jurisdiction is as to the mode and solemnity thereof quite another thing to what the practice is with us in this Realm 6. In France though the Nomination of a Bishop to succeed in a vacant See belongs to the French King yet if he doth not Nominate within Six or Nine months next after the death of the former Bishop Jus devolutum est ad Papam if a Bishoprick be there void be it quomodocunque whether by Cession or otherwise the Law speaks indefinitely in that case the King shall Nominate in France who shall be the new Bishop but then he must Nominate within Six or Nine months which being Elapsed and no Nomination he cannot afterwards Nominate Nam jus sit ad Papam devâ—lutum nec poterit purgare moram For the Law in that Case and in that Kingdom is that
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
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
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
being made Ministers and do not reform after a months suspension Also by all such persons as refuse the Sacraments at the hands of Unpreaching Ministers after a months obstinacy being first suspended Also by all such Ministers as without their Ordinaries License under his Hand and Seal appoint or keep any Solemn Fasts either publickly or in private Houses having been formerly suspended for the same fault and finally by all Ministers who hold any private Conventicles to Consult on any thing tending to the impeaching or depraving of the Doctrine of the Church of England or of the Book of Common Prayer or of any part of the Government and Discipline now established in the Church of England which by the Seventy third Canon is Excommunication ipso facto 10. Touching persons thus Excommunicated persisting Forty daies in their obstinacy there are Three several Writs at the Law issuing from the Secular power viz. Excommunicato Capiendo Excommunicato Deliberando Excommunicato Recipiendo The Excommunicato Capiendo is a Writ issuing out of Chancery directed to the Sheriff for the apprehending and imprisoning of him who hath obstinately stood Excommunicated Forty daies for the Contempt to the Ecclesiastical Laws of such not in the interim obtaining their Absolution being by the Ordinary certified or signified into Chancery the said Writ thence issues for the apprehending and imprisoning them without Bail or Mainprize until they Conform Which Writ as by the Statute of 5 Eliz c. 23. is to be awarded out of the high Court of Chancery so it is to issue thence only in Term time and Returnable in the Kings Bench the Term next after the Teste thereof and to contain at least Twenty daies between the Teste and the Return thereof And in case the Offender against whom such Writ shall be awarded shall not therein have a sufficient and lawful Addition according to the form of the Statute of 1 H. 5. Or if in the Significavit it be not contained That the Excommunication doth proceed upon some cause of Contempt or some Original matter of Heresie or refusing to have their Children Baptized or to receive the Holy Communion as it is now used in the Church of England or to come to divine Service now commonly used in the said Church or Error in matters of Religion or Doctrine now received and allowed in the said Church Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry That then all pains and Forfeitures limited against such persons Excommunicate by the said Statute of 5 Eliz. 23. by reason of such Writ of Excom Capiend wanting sufficient Addition or of such Significavit wanting all the Causes aforesaid are void in Law 11. The Excommunicato Deliberando is a Writ to the Under-Sheriff for the releasing and delivery of the Excommunicate person out of Prison upon Certificate from the Ordinary into the Chancery of his Submission Satisfaction or conformity to the Ecclesiastical Jurisdiction And the Excommunicato Recipiendo is a Writ whereby Excommunicated persons who by reason of their Obstinacy having been committed to Prison and thence unduly delivered before they had given sufficient Caution or Security to obey the Authority of the Church are to be sought for and committed again to Prison This Sentence of Excommunication by the 65 th Canon pronounced against any and not absolved within Three months next after is every Sixth month ensuing as well in the Parish Church as in the Cathedral of the Diocess wherein they remain by the Minister openly in time of Divine Service upon some Sunday to be denounced and declared Excommunicate and where by the 68 th Canon Ministers are enjoyned not to Refuse to Bury it is with an exception to such persons Deceased as were denounced Excommunicated Majori Excommunicatione for some grievous and notorious Crime and of whose repentance no man is able to testifie 12. A Sentence was given in the Chancellors Court at Oxford at the Suit of B. against H. and thereupon H. was Excommunicated and taken in London upon the Writ of Excom Capiendo And it came into the Kings Bench where he pleaded That there was no Addition in the Significavit according to the Statute of 5 Eliz. and thereupon prayed to be discharged And the Opinion of the Court was That by the Statute of 5 Eliz. the Penalties mentioned in the said Statute are discharged but not the Imprisonment nor the Excommunication 13. By the Statute of 9 Ed. 2. 12. the Writ de Excom Capiendo may be awarded to take a Clerk Excommunicate for Contumacy after Forty daies And by the Statute of 9 Ed. 2. 7. the Kings Letters may not be sent to an Ordinary to Absolve an Excommunicate but where the Kings Liberty is prejudiced By the Statute of 5 6 Ed. 6. cap. 4. striking or laying of violent hands upon any person in a Church or Church-yard is Excommunication And by the Statute of 2 Ed. 6. 13. it is Excommunication to disobey the Sentence of an Ecclesiastical Judge in Causes of Tithes By the Statute of 3 Jac. 4. the Sheriff may apprehend a Popish Recusant standing Excommunicate and by the Statute of 3 Jac. 5. a Popish Recusant convicted shall stand as a person Excommunicate And by the Statute of 3 Ed. 1. 15. he that is Excommunicated shall be debarred of Mainprize 14. V. against E. in the Ecclesiastical Court where the Suit was for Striking in the Church which by the Second Branch of the Statute of 5 Ed. 6. cap. 4. is Excommunication ipso facto By which he surmized him incidisse in poenam Excommunicationis And being granted if c. And Ashley shewed cause why it should not issue viz. There ought to be a Declaration in the Ecclesiastical Court of the Excommunication before any may prohibit him the Church Richardson said That the Proceedings are not contrary to the Statute but stood with the Statute And it was said by Yelverton It seems there ought to be a Declaration in the Ecclesiastical Court But the difference is where it is Officium Judicis or Ad instantiam paris they will give Costs which ought not to be Hutton and Richardson If the party will not prosecute it none will take notice of it and they proceed to give Costs then a Prohibition may be granted And if he be a Minister he ought to be suspended for an offence against the Statute And it ought to be first declared and so to Excommunication and that cannot be pleaded if it be not under Seal Dyer 275. And after all these were agreed by the Court and no Prohibition was granted 15. B. was sued in the Ecclesiastical Court in a cause of Defamation in another Diocess than that wherein he lived and being Cited was for Non-appearance Excommunicated and upon Significavit the Writ de Excommunicato Capiendo was awarded Serjeant Finch Recorder prayed a Supersedeas for two Reasons 1. Upon the Statute of 23 H. 8. because he was Sued out of the
51. Summoner what a description of his Office p. 86 87. § 12. What the Canon enjoyns concerning such ibid. What the ancient Canon is touching Summoners p. 88. § 13. A Case at Common Law against a Summoner p. ibid. Sect. 14. Superstitious Pictures in Church-windows whether they may be pulled down without Licence of the Ordinary p. 138. Sect. 5. Supremacy or the Kings Supremacy a description thereof p. 1. Sect. 1. Established by Statute Laws p. 2 3. Sect. 2. p. 7. Sect. 10. The Oath of Supremacy the original and occasion thereof p. 3 4. Sect. 3. The Impugners therof censured with Excommunication ipso facto p. 4. Sect. 6. Asserted by King Ed. 6. p. 7 8. Sect. 13. Also by Queen Eliz. p. 8. Sect. 14. Synods the several sorts and kinds thereof p. 584. Sect. 1. Vnder what Archbishops of Canterbury they have been anciently held here in England p. 590 591. Sect. 7. Synodale what when and to whom payable p. 67. Sect. 1. Whether it be due without the Act of Visiting p. 68. Sect. 2. p. 69. Sect. 4. Originally paid in Victualibus p. 68. Sect. 3. When and how changed into Money ibid. The divers significations of the word Synodale p. 71. Sect. 8. vid. Procurations Synodies or Synodal what the Ordinary's Right therein p. 34. Sect. 17. p. 73. Sect. 9. T. TARES cut green to feed Cattel whether Tithable p. 440. Tartarians their great Chastity they held Adultery Capital p. 471. Sect. 6. Tax for Church-Reparations by whom to be made p. 148. Sect. 20. p. 162. Sect. 4. Templars discharged of Tithes p. 402. Temporalties or Barony of a Bishop how obtained p. 27. Sect. 4. p. 28. Tenant in Common in what case the same person may be said to be Tenant in Common with himself p. 193. Sect. 16. Testis singularis whether sufficient proof for payment of Tithes p. 362. Sect. 22. vid. p. 378. Sect. 63. p. 430. Theanus Archbishop of London in the time of K. Lucius p. 17. Sect. 7. He was forced by the Infidel Hengist to fly into Cornwal and Wales p. ibid. Sect. 5. Theruma what it was p. 351. Sect. 4. Timber-Trees what shall be reputed such as not Tithable p. 441 442. If wasted on a Bishoprick it is Dilapidation p. 176 177. Sect. 8 9. Tithes What by and to whom payable when how of what things the manner of Right Tithing what the Setting forth thereof is according to the Statute and where cognizable p. 347. c. The several kinds of Tithes p. 349. Sect. 1. p. 351. Sect. 4. whence the word Tithes derived p. 347. Sect. 1. By whom the Church of England was therewith first endowed ibid. They are now at Common Law Temporal Inheritances p. 353. Sect. 6 7. Whether they may be leased or released without Deed p. 358. Sect. 11. p. 363. Sect. 27. Composition thereof for life whether good without Deed p. 372. Sect. 45. Whether so if but for one year or more p. 377. Sect. 61. p. 382. s 81. The Right of Tithes in contest between Parson and Vicar is properly cognizable in the Ecclesiastical Court p. 127. s 42. p. 369. Sect. 41. p. 380. Sect. 73. What Tithes are properly due to the Vicar p. 199. Sect. 8. Tithes not set forth Actions thereon p. 376. Sect. 55. p. 378. Sect. 65. Tithes to two by halves whether the Parishioner must so set them out p. 362. Sect. 24. Tithes are of Ecclesiastical Cognizance p. 357. Sect. 9. Objections against Tithes answered p. 350 and 351. Sect. 3. Whether Tithes are grantable by Copy p. 431. Tobacco what Tithes that pays p. 366. Sect. 32. Tombes and Sepulchres defaced where punishable p. 142. Sect. 9. Trades whether gain gotten thereby be Tithable and how p. 442. Transaction how it differs from Composition p. ibid. Translation of Bishops needs no new Consecration p. 49. Sect. 8. p. 27. Sect. 4. p. 29. Sect. 7. Trebel Dammages where and in what Case suable p. 442. Trees what Tithable or not p. 442 c. p. 377. Sect. 62. To whom the Trees growing in the Church-yard do belong p. 150. Sect. 22. If cut down to whom the Action belongs p. 137. Sect. 3. p. 153. Sect. 32. Turkeys whether Tithable p. 444. Turves whether Tithable ibid. Tyle-Stones and Brick Tyle whether Tithable p. ibid. V. VALUE of a Benefice in Case of Plurality whether to be computed according to the Kings Books or the very Annual Value thereof p. 295. Sect. 5. p. 299. Sect. 12. p. 303. Sect. 21. Venison whether Tithable p. 361. Sect. 21. p. 454. Vestry whence that word is derived p. 162. Sect. 5. Vetches whether Tithable or not p. 454. Vicar what the original thereof p. 186. Sect. 1. Where and in what Case he may sue for an encrease of Maintenance p. 199. Sect. 10 11. Vicarage how created p. 198. Sect. 6. How it differs from a Parsonage p. 197. Sect. 2. In whom the Freehold of the Glebe there-of is ibid Whether a Vicarage endowed may be appropriated and to who p. 197. Sect. 3. Who properly is Patron thereof whether the Parson or the Parsons Patron p. 199. Sect. 9. Whether a Vicarage Perpetual may be dissolved p. 202. Sect. 17. In what sense a Vicarage may be compared to a Commendam p. 203. Sect. 18. In what case a Vicarage may determine p. 199. Sect. 11. What amounts to an Vnion of the Parsonage and Vicarage p. 199. Sect. 11. Vicario deliberando occasione cujusdam Recognitionis what that Writ imports p. 648. Sect. 15. Vi Laica removenda in what case that Writ lies p. 646. Sect. 5. Vine-Trees or Vines what Tithes they yield p. 454. Violent hands laid on one in the Church or Church-yard what the penalty thereof p. 139 140. Sect. 6. p. 155. Sect. 37. p. 89 90. Sect. 16. Visitation the power of the Ordinary therein p. 34. Sect. 18. p. 89 90. Sect. 16. Whether an Archdeacon hath power of Visitation of Common Right p. 63. Sect. 7. What number of Attendants allowed by Law to Visitors p. 71. Sect. 7. Underwoods whether Tithable or not p. 455 456. Union of Churches what and by whom to be made p. 169. Sect. 1. What amounts to an Union of a Parsonage and Vicarage p. 199. Sect. 11. Unity of Possession the Law thereof in reference to Tithes also the properties thereof p. 383 454. Vodinus Archbishop of London slain by the Tyrant Vortiger p. 16. Sect. 5. Vortiger the Tyrant burnt in a Castle besieged by Aurelius Ambrose p. 16. Sect. 5. He surrendred Kent Suffolk and Norfolk to the Infidel Hengist p. ibid. Usurpation of the Pope how and when it originally began here in England and the progress thereof after the Conquest p. 97 98. Sect. 1. p. 111. Sect. 8. p. 130 c. Sect. 44. Usurper who properly is such p. 205. Sect. 1. Whether he may gain possession of an Advowson from the Crown p. 215. Sect. 18. p. 218. Sect. 22. vid. p. 219. Sect. 24. In what case an Usurpation puts the very Patron out of
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
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
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
the Revenues of the Church first came to be divided and alotted to several Ministeries then it was that this payment was first made to the Bishop by the Beneficed Clergy within his Diocess Duaren ut supr l. 2. c. 1. fo 53. It is probable that this division of the Church Revenues was not far distant in time from the first or original distinguishment of Parochial Bounds upon which affair Pope Euaristus otherwise called Anacletus Graecus did first enter about the year 110. Volateran l. 22. Anast Biblioth Baron Annal. ad An. 112. nu 4 5 6. and was afterwards carried on by Pope Dionysius about the year 260. Baron Annal. ad An. 260. nu 17. Parochial Distribution in England was by Theodorus Archbishop of Canterbury about the year 668. Spelm. Concil 152 But Speed saith by Honorius the fifth Archbishop also of Canterbury about the year 636. It may not hence be inferr'd that this Cathedraticum or Synodal was only paid ratione Synodi for it was sometimes and very anciently paid also at Visitations as appears by the seventh Council at Toledo mentioned in the Decree 10. q. 3. c. inter caetera casus ibi where there is a Canon against the exacting of more than Two shillings only pro Cathedratico in Episcopal Visitations This Cense or payment though it be Onus Ecclesiasticum yet it is not Onus innovatum but Onus Ordinarium and by imposition of Law as appears by the Provincial Constitutions Solutio Cathedratici Synodatici Procurationum ratione Visitationis alia hujusmodi de quibus non dubitatur quin sunt Onera Ordinaria suum capiunt effectum ab impositione Legis Lindw de Offic. Vic. c. quoniam gl in ver Onera Ecclesiastica Yet Procurations differ from the other in this that Procurations are only Pensions but the other are properly Census The Synody or Synodal is by the Stat. of 34 H. 8. reckoned as a Church-due for recovery whereof provision is made by that Act and good reason for the said Synody or Synodal is a Pension certain and valued in the King's Books 10. The aforesaid Ingenious Author of the Historical Discourse touching Procurations c. after his deep search into Antiquity doth conjecturally conceive that the Pentecostal otherwise called Whitson-farthings is nothing else but the Annual Commemoration continuation or repetition of an Ancient payment or pension issuing out of the Oblations brought by the people long since specially at the time of the Foundation or Dedication of their several Churches or at some other Solemnity viz. the moiety or Third part of the Oblations then made The same being reserved by the Bishop and by a Contract seu quasi Contractu between him and the Founder of such Church or Priest assigned to attend the same settled in and upon the Episcopal See and payable yearly at or about the Feast of Pentecost These Pentecostalia were not as some conceive the Peter-pence here anciently paid for they were usually paid either at the Feast of St. Peter and Paul or on Lammas day but these Pentecostals seem to be paid upon or about the time that doth chiefly denominate the same viz. at the Feast of Pentecost and in the nature thereof seem to have reference to an Oblation frequently made by the Christians in the Elder times of the Church and to have some tendency to that Liberal Devotion which was then as frequent as Sacriledge is now In Leg. 18 Guilielm Conquestor De Denariis S. Petri seu Vectigali Romano viz. Liber homo qui habuerit Averia Campestria 30 denariis aestimanda dabit Denarium S. Petri. Pro 4 denariis quos donaverit Dominus quieti erunt Bordarii ejus ejus Boner ejus Servientes Burgensis qui de propriis Catallis habet id quod dimidia Marca aestimandum est det Denarium S. Petri. Qui in Lege Danorum est Liber homo habet Averia Campestria quae dimidia Marca in argento aestimantur debet dare Denarium S. Petro. Et per Denarium quem donaverit Dominus erunt quieti ii qui resident in suo Dominico Vid. Sâ—ldeni ad Eadmerum Notae Spicelegium p. 179. Leg. 18. By this Law of William the Conquerour it appears that the Peterpence had no affinity with the Pentecostals In Ancient times when the Bishop did visit Ecclesiatim his usage was to celebrate the Mass in the Church which he visited which indeed was every Parish within his Diocess and that by his Episcopal Authority the whole Diocess in respect of the Bishop being by the Law but Paroechia sua 10. q. 3. c. Quia Duarenus passim as the whole Province is said to be in respect of the Lord Archbishop of Canterbury At this Mass the people used to make their Offerings to the Bishop and one of the causes or reasons why or wherefore the people in Ancient times were obliged to bring their Oblations to the Church was propter Consuetudinem and that certis Festivitatibus among which the Feast of Pentecost was and is a most special one at which Feast there was in many places here in England an Oblation Anciently made by inferiour Churches and Parishes to the principal mother-Mother-Church and whence probably the word Pentecostalia had its original denomination These Offerings by the Canon Law were and are only due to the Clergy and interdicted to the Laity sub districtione Anathematis 10. q. 1. c. Quia Sacerdotes c. Sanct. Patrum ibi In some places the Deans and Prebendaries of Cathedral Churches have them It is said That in the Cathedral Church of Salisbury there is a greater and a lâ—ss distinguished and known by this difference of Major Minor pars Altaris And in some Diocesses they are settled upon the Bishop and Archdeacon and made part of their Revenue for which the King hath Tenths and Subsidies The Cathedral or the Mother-Church of Worcester was Anciently and before the dissolution a Priory and among other Revenues had these Pentecostalia or Whitson-farthings yearly paid sub nomine Oblationum or Spiritual Profits tempore Pentecostes After the Dissolution when King H. 8. about the three and thirtieth year of his Reign new-founded and reendo'wd the said Church he restored these Pentecostalia after he had hâ—ld them about a year in his own hand to the said Church which as it is reported the Dean and Prebendaries thereof receive at this day and as appears by the Letters Patent Henricus Octavus c. Sciatis quod Nos de gratia nostra speciali ac ex certa scientia ac mero motu nostris dedimus concedimus ac per praesentes damus concedimus Decano Capitulo Ecclesiae Cathedralis Christi beatae Maria Virginis Wigorn. omnes illas Oblationes Obventiones sive Spiritualia proficua vulgariter vocat Whitson farthings annuatim collect sâ—ve recepta de diversis Viliatis in Comitat. nostris Wigorn. Warwic 〈◊〉 infra Archidiaconatum Wigorn
And the Judgment of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose where it is recited that the Bishop of Rome had deceived and abused the Subjects of the Crown of England pretendig and perswading them That he had full power to Dispence with all human Laws Vses and Customes of all Realms in all Causes which be called Spiritual which matter hath been usurped and practised by him and his Predecessors for many years to the great derogation of the Imperial Crown of England For whereas the said Realm of England recognizing no Superiour under God but the King hath been and yet is free from subjection to any mans Laws but only to such as have been devised made and Ordained within this Realm for the weal of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty and by their own consent to be used among them and have bound themselves by long use and custome to the observance of the same not as to the observance of the Laws of any Foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally established as Laws of the same by the said sufferance consent and custome and not otherwise it standeth with natural equity and good reason that all such human Laws made within this Realm or induced into this Realm by the said Sufferance Consent and Custome should be Dispenced with abrogated amplified or diminished by the King and his Parliament or by such persons as the King and Parliament should authorize c. Vid. 21 H. 7. 4. a. where it is said That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded that the King of England and not the Pope before the making of the said Statute of Faculties might de jure Dispence with the Ecclesiastical Law in that and other cases For although many of our Ecclesiastical Laws were first devised in the Court of Rome yet they being established and confirmed in this Realm by acceptance and usage are now become English Laws and shall no more be reputed Roman Canons or Constitutions As Rebuffus speaking De Regula Cancellariae Romanae de verisimili notitia Haec Regula says he ubique in Regno Franciae est recepta est Lex Regni effecta observatur tanquam Lex Regni non tanquam Papae Regula Papa eam revocare non potest The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical For whereas the Law of the Church is That every Spiritual person is Visitable by the Ordinary King William the Conqueror by his Charter Dispenced with the exempted the Abbey of Battell from the Visitation and Jurisdiction of the Ordinary in these express words Sitque dicta Ecclesia libera quieta in perpetuum ab omni subjectione Episcoporum quarumlibet personarum dominatione sicut Ecclesia Christi Cantuariensis c. whereby he Dispences with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis Ecclesiasticae Edit 1534. where that whole Charter is recited at large The like Charter was granted to the Abbey of Abingdon by King Kenulphus 1 H. 7. 23 25. and Cawdry's Case Co. par 5. fo 10. a. So likewise every Appropriation doth comprize in it a Dispensation to the Parson Imparsonee to have and retain the Benefice in perpetuity as appears in Grendon's Case Plow Com. 503. In which Act the King by the Common Law shall be always Actor not only as Supream Patron but also as Supream Ordinary as is also observed in Grendon's Case For the King alone without the Pope may make Appropriations 7 E. 3. Fitz. Quare Impedit 19. And in the Case of Malum prohibitum and Malum in se in 11 H. 7. 12. a. it is held That the King may dispence with a Priest to hold Two Benefices and with a Bastard that he may be a Priest notwithstanding the Ecclesiastical Laws which are to the contrary And as he may dispence with those Laws so he may pardon all Offences contrary to these Laws and his Pardon is a barr to all Suits pro salute Animae or reformatione morum and all Suits ex Officio in the Ecclesiastical Court Hall's Case Coke 5. par fo 51. In all Faculties or Dispensations for the holding of Two Benefices granted at the Court of Rome there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons and of the right of the King by name express where the Patronage belonged to him otherwise the Faculty was void For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature And if such a particular Non obstante were not added in the Faculty then there was inserted another Clause viz. Dummodo Patronorum expressus accedat Consensus also by another Clause Authority was always given to the Official or Archdeacon or other Ecclesiastical Minister to put him to whom the Faculty is granted into possession of the Benefice cum acciderit And because by the Canon Law the Patron 's consent was ever requisite in a Commenda for that reason in every Faculty or License granted by the Pope to make a Permutation Union or Appropriation of Churches these words were ever added viz. Vocatis quorum interest which chiefly intends the Patron And which Union and Approbation shall not according to the Common Law be made without the Patron 's assent Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Case Plow Com. 498. a. A Faculty or Dispensation is of such force that if a Clerk be presented to a Benefice with Cure and be Admitted Instituted and Inducted into the same so that the Church is full of him if afterwards he be presented to another Benefice Incompatible or elected to a Bishoprick and before he is Instituted to the second Benefice or be created Bishop he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo that is for his life that Faculty or Dispensation shall be of such effect that the former Benefice shall not be void by acceptance of the Second or by promotion to the Bishoprick but he shall remain full and perfect Incumbent of the first Benefice during his life In the time of H. 6. when Henry Beaufort Great Uncle to the King being Bishop of Winchester was made a Cardinal and after that purchased from the Pope a Bull Declaratory that notwithstanding he were made Cardinal yet his Bishoprick of Winchester should not be void but that he might retain the same as before yet it was held That the See of Winchester was void by assuming the Cardinalship which
Otho's Constitutions and whatever other causes of Consolidation are asserted by the DD. may be all referr'd to one or other of the foresaid Reasons Likewise there are certain Solemnities required by the Canon Law to be used and observed in the consolidation and union of Churches and Ecclesiastical Benefices the impracticability whereof in this Realm having otherwise provided in such cases can have no such malign influence in Law as to invalidate the thing for want of some Circumstantials so long as there is a retention of the Essentials according to the Laws and Constitutions of this Kingdom Vnio facta ab Episcopo debet intervenire Consensus Capituli sui Clem. si Vna de reb Eccl. non aliend Item requiritur Consensus Patroni Clem. in agro § ad haec de Stat. Mona Item Nullum habet effectum vivente Beneficiato Card. Zab. in dict Clem. Si una c. Item Verus valor Beneficiorum Exprimi debet c. 4. In all Consolidations regularly there ought to be Causa Necessitatis vel Vtilitatis Also the just and true value of the Benefices ought to be known as well of that which is to be united as of that to which the other is unitable in order whereunto there ought to issue a Commission of Enquiry touching the said cause and value at which all persons pretending Interest are to be or may be present upon Summons or Notice thereof timely given them to that end for no Consolidation or Union of that kind ought to be made non vocatis vocandis Rebuff Resp 195. 5. This Form touching Consolidations and union of Churches and Ecclesiastical Benefices is practiced in France which though there appears nothing therein but what seems consonant to Reason yet the Statute-Laws of this Realm have herein made other provision in this matter And that which we now commonly call Consolidation the Canon Law which is best and most properly acquainted with this matter calls Vnion Touching which there are in use and practice many things in divers Nations and Countries which were Incognita to the Interpreters of that Law and not in all things consonant to each other thereby rendring this Subject the more perplexed by reason of the several modes of practice diversified according to the various Constitutions of several Nations respectively for which reason the Interpreters of the Canon Law are the less positive in reducing the state of this matter to such a point of certainty as may be said Infallible in Law only they all agree in some certain Essentials to an Union as also for the most part in this Definition thereof viz. That Vnio est Beneficiorum seu Ecclesiarum ab Episcopo vel ab alio Superiore facta annexio To which this also may be added by way of description though not by way of definition That quando fit unio Ecclesia in proprietatem concedi solet Cap. in cura de jur Patronat and it must be Vnio Beneficiorum for there cannot be an Union unless there be plura Beneficia in the case L. 1. per totum ff de Optio Legat. Also it is Beneficiorum seu Ecclesiarum because the word Benefice is in it self a general term comprehending all Benefices great and small Regular and Secular Dignities and Offices C. 1. de reg jur in 6. c. extirpandae § qui vero de Praebend So that Bishopricks as well as other Benefices may be united and annexed But a Bishoprick which the Law calls culmen Dignitatis doth not regularly fall under the name or notion of Benefice c. pen. de Praebend and yet two Bishopricks may be united c. Decimas seq 16. q. 1. Rebuff de Vnion Benefic nu 4 5. 6. This Consolidation or Union at the Canon Law is either Perpetual or Temporal if Perpetual then it must be so expressed in the Union that in perpetuum univimus c. exposuisti de Praeb if Temporal then it is only for his life in whose favour the Vnion is made c. 1. ne Sede vacante and at his death it expires c. quoniam Abbas de Offic. Delegat But the Practice with us knows nothing of the Temporal Member of this distinction nor is the practice thereof at this day received in France Rebuff ubi supr nu 9. such Temporal Unions being only in contemplatione personae non Ecclesiae whereas the Law is Ecclesiae magis favendum est quam personae Dic. c. 1. c. requisisti de Testa Oldr. Consil 257. And where two Parochial Churches are consolidated or united that Church to which the other is united shall be the Superiour and principal the other which is united is the Inferiour and Accessory yet shall enjoy the Priviledges of that Church to which she is united c. recolentes in fin de stat Monach. Lastly The more worthy Benefice is never united to the minus digno and therefore a Parochial Church may not be united to a Chappel sed è contra Sic c. exposuisti de Praebend CHAP. XV. Of Dilapidations 1. What Dilapidation signifies how many waies it may happen the Remedies in Law in case thereof and to what Court the cognizance thereof properly belongs 2. Provision made by the Canon for prevention of Dilapidations 3. Dilapidation twofold in construction of Law An Exposition of the said Canon the Bishops power of Sequestration in case of Dilapidation 4. By whom the Body of the Church and by whom the Chancel shall be kept in repair How the charge of Repair in the case of Dilapidations shall be apportioned and what the Law in such cases where one Parish is divided into Two 5. Dilapidation of Ecclesiastical Edifices a good cause in Law of Deprivation 6. The Injunction of King Ed. 6. for prevention of Dilapidations 7. Leases made by a Parson void by Statute for Non-residence to prevent Dilapidations 8. The wasting the Woods of a Bishoprick a Dilapidation in Law such Woods being the Dower of the Church 9. A Vicar felling down Timber Trees and Wood in the Church-yard is a Dilapidation and good cause of Deprivation 1. DIlapidation is the Incumbents suffering the Chancel or other the Edifices of his Ecclesiastical Living to go to ruine or decay neglecting to repair the same It extends also to his committing or suffering to be committed any wilful Waste in or upon the Glebe-woods or other Inheritance of his Church Against which provision is made by the Provincial Constitutions whereof Sir Simon Degge takes notice in his Parsons Counsellor though in truth the Canon there provides rather as to satisfaction for than prevention of such Dilapidations Lindw c. si Rector alicujus Ecclesiae Gloss ibid. But the Canon Law is express and full in all respects relating to this implicit Sacriledge nor doth the Custome of England or the Common Law leave the Church without sufficient Remedy in this case albeit it postpones the satisfaction of dammages for Dilapidations to the payment of Debts as the Canon Law prefers it before the payment of Legacies
notwithstanding they were several Advowsons and several Quare Impedits might be brought of them and several Actions maintain'd for their several Possessions yet the Presentment of one man to the Parsonage and Vicarage was no Plurality because the Parsonage and Vicarage are but one Cure And there is a Proviso in the Statute That no Parsonage that hath a Vicar endowed shall be taken by the Name of a Benefice with Cure within the Statute as to make it a Plurality 6. The Lord Hobart in Colt and Glover's Case against the Bishop of Coventry and Lichfield is clear of Opinion That Bishopricks are not within the Law under the word Benefices in the Statute of 21 H. 8. cap. 13. So that if a Parson take a Bishoprick it avoids not the Benefice by force of this Law but by the ancient Common Law as it is holden 11 H. 4 60. But withal he holds it as clear That if a Bishop have or take two Benefices Parsonages or Vicarages with Cure either by Retainer or otherwise de novo he is directly as to these Benefices within the Law for he is to all purposes for those not a Bishop whether it be in his own Diocess or not but a Parson or Vicar and by that Name must sue and be sued and Prescribe and Claim For if any person having one Benefice with Cure c. take another c. whosoever will hold two Benefices must have such a Qualification and such a Dispensation as the Law 21 H. 8. requires Whereupon the Lord Hobart in the foresaid Case is clear of Opinion That if a man be qualified Chaplain to any Subject and then be made a Bishop his Qualification is void so as he cannot take two Benefices de novo after by force of that Qualification But if he had lawfully two Benefices before his Bishoprick he may by Dispensation of Retainer besides his former Dispensation to take two Benefices hold them with his Bishoprick And if a man being the King's Chaplain take a Bishoprick he holds that he ceaseth to be the King's Chaplain and Bishops are not in that respect Chaplains to the King within the meaning of the Statute So that the Clause of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain will not serve them In this Case of Colt c. against the Bishop of c. he is of Opinion That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Dispensation procure another with Cure to be united to it after though they make but one Benefice for this Cautel of Union is provided for by Name But of Unions before he is of another Opinion Case Colt Hob. Rep. 7. In ancient times the Pope used to grant Dispensations of the Canons in this Realm and so might the King have done The first Statute that restrain'd the power of the Pope was that of 21 H. 8. of Pluralities That the Church shall be void notwithstanding any Grant of the Pope Also the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have dispensed with a man to have twenty Benefices and so might the King The 21 H. 8. was the first Statute or Law which gave allowance for Pluralities afterwards by the 28 H. 8. the power of the Pope was given to the King But as it was said and agreed in the Case of Evans and Ascough that was not by way of Introduction but Cumulutive and by way of Exposition And by that Statute the Archbishop of Canterbury had in this matter a concurrent power with the King and Dispensation granted by the King or by the Archbishop is good Also in the said Case it was agreed by all the Justices That if a Parson or Dean in England doth take a Bishoprick in Ireland it makes the first Church void by Cession because Ireland is a Subordinate Realm to England and governed by the same Law For it was there agreed by all as well by the Justices as those of the Barr That if a Parson or Dean in England take a Bishoprick in Ireland the first Church is void by Cession Justice Whitlock gave this Reason for it Because there is but one Canon Law per totam Ecclesiam and therefore wherever the Authority of the Pope extended it self be it in one or divers Realms the taking of a Bishoprick made the Deanary or Parsonage void Nemo potest habere duas Militias nec duas Dignitates est impossibile quod unus homo potest esse in duobus locis uno tempore And 5 R. 2. F. Tryal 54. the whole Spiritual Court is but one Court which Book is very remarkable to that purpose That the Canon Law is but one Law Which Reason was also given by Justice Doderidge in the same Case and upon the same point who said That the Law of the Church of England is not the Pope's Law but that all of it is extracted out of Ancient Canons as well General as National Another Reason which he then gave was Because Ireland is a Subordinate Realm and governed by the same Law Because although before the time of H. 2. they were several Kingdoms or Realms yet the Laws of England were there Proclaimed by King John and is subject to the Laws of England And if the King having a Title to Present to a Church in Ireland confirm it to the Incumbent under the Great Seal of England it is good 45 Ed. 3. 70. 8. In Savacre's Case it was adjudged in the Common Pleas That if a Baron or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices and after they discharge their Chaplains from their Service they shall retain their Benefices during their Lives and if the Baron takes others to be his Chaplains they cannot take many Benefices during the Lives of the others which are Beneficed and Discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplains 9. T. prayed a Prohibition to the Arches the Case was this One had a Recovery in a Quare Impedit and he had a Writ to the Bishop against T. upon which A. his Clerk was admitted c. and after the Recovery died and T. supposing his heir to be in the Ward of the King and that the said A. took another Benefice without sufficient Qualification by which the Church was void by Cession and he attained a Presentation of the King and he was Admitted c. by the Lord-keeper being within the Diocess of Lincoln and A. sued him in the Ecclesiastical Court and T. prayed a Prohibition and it was granted per totam Curiam for without question there ought nothing to be questioned in the Ecclesiastical Court after the Induction of the party And whether it is a Cession
the King Confirms and afterwards he is Inducted to the Church of D. In this Case it was Adjudged That the Dispensation came too late because it came after the Institution for by the Institution the Church is full against all persons except the King and as to the Spititualties he is full Parson by the Institution 2. Resolved That admit the Church was not full by the Institution until Induction yet the Dispensation came too late for that the words of the Statute of 21 H. 8 of Pluralities are may purchase Licence to receive and keep two Benefices with Cure of Souls and the words of Dispensation in this case were recipere retinere and because by the Institution the Church was full he could not purchase Licence to receive that which he had before and he cannot retain that which he cannot receive 26. In the case of a Prohibition it was Resolved That by the Common Law before the Statute of 21 H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Archbishop had not Authority by the Statute of 25 H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute But yet the Statute as to those Dispensations which the Archbishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal CHAP. XXVII Of Deprivation 1. What Deprivation is and in what Court to be pronounced 2. The Causes in Law of Deprivation 3. In what Cases Deprivation ipso facto without any Declaratory Sentence thereof may be 4. A Cardinal 's Case of Deprivation by reason of Miscreancy 5. The Papal Deprivation by reason of Marriage 6. What the Law is in point of Notice to the Patron in case of Deprivation by reason of meer Laity or Nonage 7. The difference of operation in Law between Malum prohibitum and Malum in se and in what Cases of Deprivation Notice ought to be given to the Patron 8. Deprivation by reason of Degradation which Degradation at the Canon Law may be two ways 9. Cawdry's Case of Deprivation for Scandalous words against the Book of Common Prayer sentenced by the High Commissioners 10. Deprivation for Non-conformity to the Ecclesiastical Canons by the High Commissioners agreed to be good 11. Deprivation for not Reading the Articles of Religion according to the Statute of 13 Eliz. 12. Deprivation by the High Commissioners for Drunkenness 13. The Church is not void by the Incumbents being Deprivable without Deprivation 14. For an Incumbent to declare his Assent to the Articles of Religion so far as they agree with the Word of God is not that unfeigned Assent which the Statute requires 15. A Church becomes void presently upon not Reading the Articles and there needs not any Deprivation in that Case 16. A Case wherein a Sentence declaratorie for Restitution makes a Nullity in the Deprivation 17. An Appeal from a Sentence of Deprivation prevents the Church's being void pro tempore 18. Vpon Deprivation for meer Laity or Incapacity the Lay-Patron must have Notice ere the Lapse incurrs against him 19. An Incumbent Excommunicated and so obstinately persisting 40 daies is Deprivable 1. DEprivation is a discharge of the Incumbent of his Dignity or Ministery upon sufficient cause against him conceived and proved for by this he loseth the Name of his First Dignity and that either by a particular Sentence in the Ecclesiastical Court or by a general Sentence by some positive or Statute-Law of this Realm So that Deprivation is an Ecclesiastical Sentence Declaratory pronounced upon due proof in the Spiritual Court whereby an Incumbent being legally discharged from Officiating in his Benefice with Cure the Church pro tempore becomes void So that it is in effect the Judicial incapacitating an Ecclesiastical person of holding or enjoying his Parsonage Vicarage or other Spiritual promotion or dignity by an Act of the Ecclesiastical Law only in the Spiritual Court grounded upon sufficient proof there of some Act or Defect of the Ecclesiastical person Deprived This is one of the means whereby there comes an Avoidance of the Church if such Sentence be not upon an Appeal repealed The causes of this Deprivation by the Canon Law are many whereof some only are practicable with us in the Ecclesiastical Laws of this Realm and they only such as are consonant to the Statutes and Common Law of this Kingdom 2. All the Causes of Deprivation may be reduced to these Three Heads 1 Want of Capacity 2 Contempt 3 Crime But more particularly It is evident that the more usual and more practicable Causes of this Deprivation are such as these viz. a meer Laity or want of Holy Orders according to the Church of England Illiterature or inability for discharge of that Sacred Function Irreligion gross Scandal some heinous Crime as Murther Manslaughter Perjury Forgery c. Villany Bastardy Schism Heresie Miscreancy Misbelief Atheism Simony Illegal Plurality Incorrigibleness and obstinate Disobedience to the approved Canons of the Church as also to the Ordinary Non-conformity Refusal to use the Book of Common Prayer or Administer the Sacraments in the order there prescribed the use of other Rites or Ceremonies order form oâ— celebrating the same or of other open and publick Prayers the preaching or publishing any thing in derogation thereof or depraving the same having formerly been convicted for the like offence the not Reading the Articles of Religion within Two months next after Induction according to the Statute of 13 Eliz cap. 12. The not Reading publickly and solemnly the Morning and Evening Prayers appointed for the same day according to the Book of Common Prayer within Two month next after Induction on the Lord's Day the not openly and publickly declaring before the Congregation there Assembled his unfeigned assent and consent after such Reading to the use of all things therein contained or in case of a lawful Impediment then the not doing thereof within one month next after the removal of such Impediment a Conviction before the Ordinary of a wilful maintaining or affirming any Doctrine contrary to the 39 Articles of Religion a persistance therein without revocation of his Error or re-affirmance thereof after such Revocation likewise Incontinency Drunkenness and 40 daies Excommunication To all which might also be added Dilapidation for it seems anciently to have been a Dilapidator was a just cause of Deprivation whether it were by destroying the Timber-trees or committing waste on the Woods of the Church-Lands or by putting down or suffering to go to decay the Houses or Edifices belonging to the same as appears by Lyford's Case as also in the Bishop of Salisbury's Case
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
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
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
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
of new improvements in their own occupation by culture Pasture and Garden-Fruits only the said Three Orders were exempted from the general payment of all Tithes whatever The Templers and Hospitallers were meer Lay-men yet they were exempted as well as the other Yet the Lateran Council in An. 1215. Ordered That this Priviledge should not extend to Covents erected since that Lateran Council nor to Lands since bestowed on the said Orders though their Covents were erected before that Council Insomuch that when the said Cistercians contrary to the Canons of that Council purchased Bulls from the Pope to discharge their Lands from Tithes King H. 4. Null'd such Bulls by the Stat. of 2 H. 4. cap. 4. and reduced their Lands to a Statu quo These Exemptions from payment of Tithes in this or that particular Religious Order was not known in the World when Aethelwolph Son of Egbert whom he succeeded as King of the West-Saxons gave as aforesaid Tithes of all his Kingdom and that freed of all Tributes Taxes and Impositions as appears by his Charter to that purpose having at a Solemn Council held at Winchester subjected the whole Kingdom of England to the payment of Tithes True it is that long before his time many Acts for Tithes may be produced such as the Imperial Edicts Canons of some Councils and Popes beside such Laws as were made by King Ina and Offa yet the said Edicts and Canons were never received in their full power into England by the consent of Prince and People nor were King Ina and Offa though Monarchs of England as it were in their turns such Kings as conveyed their Crowns to the Issue of their Bodies but the said Aethelwolph was Monarcha Natus non factus and although before his time there were Monarchs of the Saxon Heptarchy yet not successive and fixed in a Family but the said King Egbert being the first that so obtained this Monarchy as to leave it by descent unto his Son the said Aethelwolph he thereby had the more indisputable power to oblige all the Kingdom unto an observance of the said Act. In the said Chapter of Tithes there is also mention made of Mortuaries as having some relation of Tithes wherein is shewed what it is when by and to whom and wherefore to be paid By the Stat. of 21 H. 8. they are reduced to another Regulation than what was in the time of King Henry the Sixth A Mortuary was then the Second best Beast whereof the party died possessed but in case he had but two in all then none due It was called a Corse-Present because ever paid by the Executors though not alwaies bequeathed by the dying party All persons possessed of an Estate Children under Tuition and Femes Covert but not Widows excepted were liable to the payment thereof to the Priest of that Parish where the dying party received the Sacrament not where he repaired to Prayers but in case his House at his death stood in two Parishes it was then divided betwixt them both And it was given in lieu of Personal Tithes which the party in his life time had through ignorance or negligence not fully paid Lindw Cons de Consuetud Such of the ancient Lawyers as were unacquainted with this word Mortuarium in the aforesaid sense as we now use it took Mortuarium only pro derelicto in morte say of it That it is Vocabulum novum harbarum but we understand it better where of Custome it is due and payable These Mortuaries where by the Custome they are to be paid were ever in consideration of the omission of Personal Tithes in the parties Life-time which Personal Tithes were by the Canon Law to be paid only of such as did receive the Sacraments and only to that Church where they did receive them as may be inferr'd plainly from cap. Ad Apostolicae de Decimis But observe says Lessius that in many places these Personal Tithes have been quite taken away and in some places they are paid only at the end of a mans Life as among the Venetians which manner of payment seems to have a great resemblance to these Mortuaries and in some places they are paid only ot the end of the year And in like manner many Predial and Mixt Tithes in divers places are also abolish'd which says he is for the most part done by the permission of the Church where men have been observed to pay them with regret and much against their minds nor hath the Church in such cases thought fit to compel them to it on purpose to avoid scandal Lessius de Just jur lib. 2. cap. 39. Dub. 5. nu 27. And in such places where the Custome is to pay a Personal Tithe when any persons shall Hunt Fish or Fowl to make gain or merchandize thereby and it be neglected to be paid whether Restitution or Compensation by way of a Mortuary where Mortuaries are Customable be in that case due by Law is a Question which by Covarruvies may be well held in the Affirmative Although the face of the Church as well as State began to look with a purer though less Sanguine complexion when Queen Elizabeth adorn'd the Crown than when her Sister wore it yet even in Queen Elizabeths time there crept such abuses into the Church that Archbishop Parker found it necessary to have recourse unto the Power given him by the Queens Commission and by a Clause of the Act of Parliament For the uniformity of Common Prayer and Service in the Church c. whereupon by the Queens consent and the Advice of some of the Bishops he sets forth a certain Book of Orders to be diligently observed and executed by all persons whom it might concern wherein it was Provided That no Parson Vicar or Curate of any Church Exempt should from thenceforth attempt to conjoyn by solemnization of Matrimony any not being of his or their Parish-Church without good Testimony of the Banns being ask'd in the several Churches where they dwell or otherwise were sufficiently Licensed Heyl. Hist of Q. Eliz. An. Reg. 3. Banns or Banna that word Bannum is sometimes taken pro Mandato scil Edicto it is a word of divers significations as appears almost by all the Glossographists and Feudists it sounds sometimes like Edictum sometimes like Mandatum or Decretum and sometimes as here like Proclamatio Saxonibus gebann whence there is their gebannian pro Proclamare edicere mandare ut nostratium Bannes pro Nuptiarum foedere Publicato This Publication of Banns was cautiously ordain'd for the prevention of Clandestine Marriages which were prohibited in this Kingdom above 500 years since as a thing contrary in all Ages to the practice of all Nations and Churches where the Gospel was received and therefore at a Council conven'd at Westminster in the year 1175. by Richard Archbishop of Canterbury under the Reign of King H. 2. it was Ordain'd That no person whatsoever should solemnize Marriage in
whatsoever Name or Names they may be called in their Convocation in time coming which alwaies shall be assembled by the Kings Writ unless the same Clergy may have the Kings most Royal assent and License to make promise and execute such Canons Constitutions and Ordinances Provincial or Synodical upon pain of every one of the said Clergy doing the contrary to this Act and thereof convicted to suffer Imprisonment and making Fine at the Kings will Since this year from Archbishop Cranmer to this day all Convocations are to have the Kings leave to debate on matters of Religion and their Canons besides his Royal assent an Act of Parliament for their Confirmation And as to the General Councils there are not any of them of use in England except the first Four General Councils which are established into a Law by King and Parliament The Learned Bishop Prideaux in his Synopsis of Councils gives us the definition of Synodographie and says It is such a Methodical Synopsis of Councils and other Ecclesiastical Meetings as whereby there may be a clear discovery to him that doubts how any Case may be enquired after and what may be determined concerning the same And then immediately after gives us the definition of a Council which he calls a Free Publick Ecclesiastical Meeting especially of Bishops as also of other Doctors lawfully deputed by divers Churches for the examining of Ecclesiastical Causes according to the Scriptures and those according to the power given by Common Suffrages without favour of parties to be determined in matters of Faith by Canons in cases of Practice by Presidents in matters of Discipline by Decrees and Constitutions Of these Councils he observes some to have been Judaical others Apostolical others Oecumenical some Controverted others Rejected and some National to all which he likewise adds Conferences 1 Under the Title of Judaical Councils he comprehends the more solemn Meetings about extraordinary affairs for the Confirming Removing or Reforming any thing as the matter required Such he observes to have been at Sichem under Josuah and Eleazer Josh 24. At Jerusalem the first under David Gad and Nathan being his Assistants 1 Chro. 13. At Carmelita under Ahab and Elias 1 King 18. At Jerusalem the Second under Hezekiah 2. Chro. 29. At Jerusalem the Third under Josiah and Hilkiah 2 Kin. 33. 2 Chro. 34. At Jerusalem the Fourth under Zorobabel and Ezra and the Chief of the Jews that return'd from the Captivity of Babylon And lastly that which is called the Synod of the Wise under John Hircanus Genebrand Chron. l. 2 p. 197. 2 The Apostolical Councils he observes to have been for the substituting of Matthias in the place of Judas Act. 1. For the Election of Seven Deacons Act. 6. For not pressing the Ceremonial Law Act. 15. 11. For the toleration of some Legal Ceremonies for a time to gain the Weak by such condescension Matth. 21. 18. For composing the Apostles Creed For obtruding to the Church 85 Canons under the notion of the Apostles authority concerning which there are many Controversies Lastly for the Meeting at Antioch where among Nine Canons the Eighth commanded Images of Christ to be substituted in the room of Heathenish Idols the other pious Canons being destitute of the Synods authority vid. Bin. Tom. 1. p. 19. Longum p. 147. 3 Of Oecumenical or General Councils some were Greek or Eastern others were Latin or Western The more Famous of the Oecumenical Greek Councils were the Nicene the first of Constantinople the first of Ephesus the first of Chalcedon Of Constantinople the second of Constantinople the third The Nicene the second The more Famous of the Oecumenical Latin Councils were at Ariminum the Lateran at Lions at Vienna the Florentine the Lateran the fifth and lastly at Trent 4 Of Controverted Councils if that distinction be admissable according to the Classis thereof digested by Bellarmine the Computation is at Constantinople the fourth at Sardis at Smyrna at Quinisext at Francfort at Constance and at Basil 5 Of Rejected Councils whereby are intended such as either determine Heretical Opinions or raise Schisms the Computation is at Antioch at Milain at Seleucia at Ephesus the second at Constantinople at Pisa the first and at Pisa the second 6 Of National Synods which comprehend the Provincials of every Metropolitan or Diocesan Bishop the distribution is into Italian Spanish French German Eastern African Britain 7 To these may be added Ecclesiastical Conferences which were only certain Meetings of some Divines wherein nothing could be Canonically determined and therefore needless to be here particularly inserted vid. B. Prideaux Synops of Counc vers fin The grand Censure of the Church whereby it punisheth obstinate Offenders is by way of Excommunication which though the Canonists call Traditio Diabolo or giving the Devil as it were Livery and Seizin of the Excommunicate person yet the Romanists have a Tradition that St. Bernard Excommunicated the Devil himself Sanctus Bernardus plenus virtutibus quadam die praesentibus Episcopis clero populo Excommunicavit quendam Diabolum Incubum qui quandam mulierem in Britannia per septeunium vexabat sic Liberata est ab eo Chron. Jo. Bromton de Temp. H. 1. A miraculous Excommunication and a Sovereign Remedy against Diabolical incubations The Excommunication which St. Oswald pronounced against one who would not be perswaded to be reconciled to his Adversary had nothing so good though a more strange effect for that Excommunicated him out of his Wits and had it not been for Wolstan who as miraculously cur'd him you might have found him if not in Purgatory then in Bedlam at this day Illi cujus es says Sanctus Oswaldus Te commendo carnem Sathanae tuam trado Statim ille dentibus stridere spumas jacere caput rotare incipit Qui tamen à Wolstano sanatus cum Pacem adhuc recusaret iterum tertio est arreptus simili modo quousque ex corde injuriam remitteret offensam If you have not faith enough to believe this on the Credit of Abbot Brompton who Chronicled from the year 588 in which St. Austin came into England to the death of King Richard the First which was in the year 1198. if you have not I say faith enough for the premisses you are not like to be supplied with any on this side Rome unless you have it from Henry de Knighton Canon of Leyster who wrote the Chronicle De Eventibus Angliae from King Edgars time to the death of King Richard the Second for he in his Second Book de Temp. W. 2. doth put it under his infallible pen for an undeniable Truth And indeed is much more probable than what the said Abbot reports touching St. Austins raising to life the Priest at Cumpton in Oxfordshire 150 years after his death to absolve a penitent Excommunicate that at the same time rose also out of his grave and walked out of the Church at St. Austins command That no
form following and not otherwise yet the King is not thereby restrained but his power remains full and perfect as before and he may still grant them as King for that all Acts of Grace and Justice flow from him By the Eighth Canon Concilii Calchuthensis held under Pope Adrian the First An. 787. the Pope had power to grant what Immunities and Priviledges he pleased in Church-matters and they were by the said Canon to be duly observed Whatever Authority the Pope pretended to in this Kingdom in such matters by way of Usurpation the same may the King as Supream Governour of the Church next under God in his own Dominions use and lawfully exercise by his Regal Authority ex justa plenitudine Potestatis suae Likewise Pope Agathon An. 680. in Concilio Romano-Britannico exercised his Papal Authority in the time of Lotharius King of Kent not only touching the Reformation of Errors and Heresies then in this Church but also as to the composure of differences and dissentions that then were among the Clergy of this Realm Such Presidents of the usurped power of the Papal See exercised in this Kingdom are now of no further use than to illustrate or exemplifie the Legal power inherent in the Kings of this Realm in such matters of Ecclesiastical Jurisdiction for the most High and Sacred Order of Kings being of Divine Right it follows that all persons of what estate soever and all Causes of what quality soever whether Ecclesiastical or Civil within his Majesties Realms and Dominions are subordinated to the Power and Authority of the King as Supream It is not only acknowledged but also constituted by way of an Ecclesiastical Canon That the power of Calling and Dissolving Councils both National and Provincial is the true Right of all Christian Kings within their own Realms and Territories 8. The Ecclesiastical Legislative power was ever in the Kings of this Realm within their own Dominions That in Ancient times they made their own Ecclesiastical Laws Canons and Constitutions appears by several Presidents and Records of very great Antiquity which were received and observed within their own Territories without any Ratification from any Forreign power One instance among many may be given of the Ecclesiastical Laws of Alured Mag. Regis Anglorum An. 887. This they did de jure by virtue of their own inherent Supremacy And therefore when Pope Nicholas the Second An. 1066. in the Bull wherein he ordained Westminster to be the place for the Consecration of Kings gave power to Edward the Confessor and his Successors to constitute such Laws in the Church as he should think fit he gave him therein no more than was his own before For the Kings of England might ordain or repeal what Canons they thought fit within their own Dominions in right of their Regal Supremacy the same being inherent in them Jure Divino non Papali For we find that in King AEtheldreds days An. 1009. in Concilio AEnhamensi Generali the Canons then made and afterwards caused by King Kanutus to be Transcribed were called the Kings Canons not the Bishops En hujus Concilii Canones quos in suas Leges passim transcripsit Rex Canutus Malmsburius AEtheldredo Regi non Episcopis tribuit And the Peers of this Realm per Synodum Landavensem were unexcommunicable nisi prius Consulto Rege aut ejus praecepto Which is a plain demonstration That the Kings of England Anciently had the Supremacy and superintendent Ecclesiastical power and Jurisdiction inherent in themselves exclusively to all other either home or Forreign powers whatever 9. It is by good Authority asserted That the King as Supream is himself instead of the whole Law yea that he is the Law it self and the only chief Interpreter thereof as in whose Breast resides the whole knowledge of the same And that his Majesty by communicating his Authority to his Judge to expound the Laws doth not thereby abdicate the same from himself but that he may assume it again unto him when and as oft as he pleases Dr. Ridl View p. 2. c. 1. Sect. 7. Consonant whereunto is that which Borellus hath Principum Placita Legis habent vigorem eatenus vim Legis obtinebunt quatenus fuerint cum honestate conjuncta Borel de Magist Edict l. 2. c. 4. Roland à Val. Cons 91. nu 54. vo 2. And Suarez tells us That Princeps est Lex viva reipsa praecipit ut Lex per scripturam Of which Opinion also is Alexander Imola and many others Suar. Alleg. 9. nu 13. The grant of Dispensations is a peculiar and very considerable part of Ecclesiastical Jurisdiction the which is eminently in the Crown and by the Stat. of 25 H. 8. the Archbishop of Canterbury may grant Dispensations Archiepiscopus possit dispensare contra Statutum Provinciale per se editum Et qui potest jus condere potest illud tollere Lindw de Cler. Conju c. 2. gl ult Extr. de Elect. c. Significasti c. Intonuit And in another place Episcopus in quibusdam Casibus Dispensare potest contra Canones Const Otho de Concu Cler. gl ver Meritis 10. The Laws and Statutes of this Realm have been tender of the Kings Supremacy ever since the Forreign power over the State Ecclesiastical was abolished In the Statute of 13 Car. 2. cap. 12. there is a Proviso That nothing in the said Act shall extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs And in the Stat. of 22 Car. 2. cap. 1. there is a Proviso That not any thing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical affairs but that his Majesty his Heirs and Successors may from time to time and at all times hereafter exercise and enjoy all Powers and Authority in Ecclesiastical affairs as fully and amply as any of his Predecessors have or might have done 11. As no Convocations for Ecclesiastical Constitutions or for correction or reformation of Abuses in the Church can be Conven'd without his Majesties Writ for that end and purpose so being Conven'd no Canons or Constitutions that shall then be agreed on can have any effect in Law or be in force to oblige any of his Majesties Subjects until his consent thereunto be first had and obtained and until they shall have the power of Ecclesiastical Laws by being ratified and confirmed by the Supream Authority Therefore the Archbishop of Canterbury may not hold a Council for his Province without the Kings leave for when such Council was held by Hubert Archbishop of Canterbury it was prohibited by Fitz-Peter Chief Justice for that he had not the Kings License therein but he would not obey And 13 E. 3. Rot. Parl. M. 1. there was a Writ for a Convocation of the Clergy of the Province of Canterbury and Pauls And another for the other of York vid. Stat. 25 H. 8. c. 19. where the Clergy of England acknowledge that
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
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.
exempted out of the Bishop of London's Jurisdiction The Judge of this Court of Arches is styled the Dean of the Arches or the Official of the Arches-Court unto whose Deanary or Officialty to the Archbishop of Canterbury in all matters and causes Spiritual is annexed the Peculiar Jurisdiction of the thirteen Parishes as aforesaid Having also all Ordinary Jurisdiction in Spiritual causes of the first Instance with power of Appeal as the superiour Ecclesiastical Consistory through the whole Province of Canterbury yet the Lord Coke says his power to call any person for any Cause out of any part of his Province within the Diocess of any other Bishop except it be upon Appeal is restrained by the Stat. of 23 H. 8. c. 9. Yet his Jurisdiction is Ordinary and extends it self through the whole Province of Canterbury insomuch that upon any Appeal made to him from any Diocess within the said Province he may forthwith without further examination at that time of the Cause issue forth his Citation to be served on the Appealee with his Inhibition to the Judge à quo In Mich. 6 Jac. C. B. there was a Case between Porter and Rochester The Case was this Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tithes growing in B. in the said County of Essex by Porter in the Court of Arches of the Archbishop of Canterbury in London where the Archbishop hath a peculiar Jurisdiction of thirteen Parishes called a Deanary exempt from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the chief And a great Question was moved Whether in the said Court of Arches holden in London he might cite any dwelling in Essex for subtraction of Tithes growing in Essex or whether he be prohibited by the Statute of 23 H 8. c. 9 Which after debate at Bar by Council and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common Pleas A Prohibition was granted to the high Court of Arches And in this case divers points were resolved by the Court 1 That all Acts of Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civilians and Canonists although the Acts concern Ecclesiastical Jurisdiction 2 Resolved by Coke Chief Justice Warburton Daniel and Foster Justices That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to cite any one out of his own Diocess For Diaecesis dicitur distinctio c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus Commissa gubernatio unius c. And is derived a Di Duo Electio quia separat duas Jurisdictiones And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London for this cause it is fitly said in the Title Preamble and body of the Act that when the Archbishop sitting in his Exempt peculiar in London cites one dwelling in Essex he cites him out of the Bishop of London's Diocess Therefore out of the Diocess And in the clause of the penalty of 10 l. it is said Out of the Diocess c. where the party dwelleth which agrees with the signification of Diocess before 2. The body of the Act is No person shall be henceforth cited before any Ordinary c. out of the Diocess or peculiar Jurisdiction where the person shall be dwelling and if so then à Fortiori the Court of Arches which sits in a Peculiar may not cite others out of another Diocess And the words out of the Diocess are meant of the Diocess or Jurisdiction of the Ordinary where he dwelleth And from the Preamble of the Act the Lord Coke observes and inferrs That the intention of the Act was to reduce the Archbishop to his proper Diocess unless in these five Cases viz. 1 For any Spiritual offence or cause committed or omitted contrary to Right and Duty by the Bishop c. which word omitted proves there ought to be a default in the Ordinary 2 Except it be in Case of Appeal and other lawful cause where the party shall find himself grieved by the Ordinary after the matter there first begun Therefore it ought to be first begun before the Ordinary 3 In case the Bishop or Ordinary c. dare not or will not Convent the party to be sued before him 4 In case the Bishop or Judge of the place within whose Jurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the matter or cause of the same Suit 5 In case any Bishop or other inferiour Judge under him c. make Request to the Archbishop Bishop or other inferiour Ordinary or Judge and that to be done in Cases only where the Law Civil or Common doth affirm c. The Lord Coke takes notice also of Two Provisoes in that Act which do likewise explain it viz. That it shall be lawful for every Archbishop to cite any person inhabiting in any Bishops Diocess in his Province for matter of Heresie By which says he it appears That for all causes not excepted he is prohibited by the Act. 2 There is a Saving for the Archbishop calling any person out of the Diocess where he shall be dwelling to the probat of any Testament Which Proviso should be vain if notwithstanding that Act he should have concurrent Jurisdiction with every Ordinary throughout his whole Province Wherefore it was concluded That the Archbishop out of his Diocess unless in the Cases excepted is prohibited by the 23 H. 8. c 9. to cite any man out of any other Diocess which Act is but a Law declaratory of the Ancient Canons and a true Exposition thereof as appears by the Canon Cap. Romana in Sext. de Appellat c. de Competenti in Sext. And as the Lord Coke observes the Act is so expounded by all the Clergy of England at a Convocation at London An. 1 Jac. 1603. Can. 94. who gives us further to understand in this Case between Porter and Rochester That the Archbishop of this Realm before that Act had power Legantine from the Pope By which they had Authority not only over all but concurrent Authority with every Ordinary c. not as Archbishop of Canterbury c. but by his Power and Authority Legantine Et tria sunt genera Legatorum 1 Quidam de Latere Dom. Papae mittuntur c. 2 Dativi qui simpliciter in Legatione mittuntur c. 3 Nati seu Nativi qui suarum Ecclesiarum praetextu Legatione funguntur sunt Quatuor viz. Archiepiscopus Cantuariensis Eboracensis Remanensis Pisanis Which Authority Legantine is now taken away and utterly abolished 4. It is supposed that the Judge of this Court was originally styled the Dean of the Arches by reason of his substitution to the Archbishop's Official when
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
but by death or resignation for otherwise Dilapidations should be in the time of the Successor and he cannot maintain Hospitality 8. The wasting of the Woods belonging to a Bishoprick is in the Law understood as a Dilapidation as was formerly hinted Note By Coke Chief Justice a Bishop is only to fell Timber for Building for Fuel and for his other necessary occasions and there is no Bishoprick but the same is on the Foundation of the King the Woods of the Bishoprick are called the Dower of the Church and these are alwaies carefully to be preserved and if he fell and destroy this upon a motion thereof made to us says the Lord Coke we will grant a Prohibition And to this purpose there was a great Cause which concerned the Bishop of Duresm who had divers Cole-Mines and would have cut down his Timber-Trees for the maintenance and upholding of his Works and upon motion in Parliament concerning this for the King Order was there made that the Judges should grant a Prohibition for the King and we will here says he revive this again for there a Prohibition was so granted And so upon the like motion made unto us in the like case we will also for the King grant a Prohibition by the Statute of 35 E. 1. If a Bishop cut down Timber-Tres for any cause unless it be for necessary Reparations as if he sell the same unto a Stranger we will grant a Prohibition And to this purpose I have seen said he a good Record in 25 E. 1. where complaint was made in Parliament of the Bishop of Duresm as before for cutting of Timber-Trees for his Cole-Mines and there agreed that in such a case a Prohibition did lie and upon motion made a Prohibition was then granted and the Reason then given because that this Timber was the Dower of the Church and so it shall be also in the case of a Dean and Chapter in which cases upon this ground we will grant as he said Prohibitions and the whole Court agreed with him herein Also in Sakar's case against whom Judgment being given for Simony yet he being by assent of parties to continue in the Vicarage for a certain time this time being now past and he still continuing in possession and committing of great Waste by pulling down the Glass-windows and pulling up of Planks the Court granted a Prohibition and said That this is the Dower of the Church and we will here prohibit them if they fell and waste the Timber of the Church or if they pull down the houses And Prohibition to prevent Dilapidations and to stay the doing of any Waste was in that case awarded accordingly 9. In a Prohibition the Case was this A Vicar lops and cuts down Trees growing in the Church-yard the Churchwardens hinder him in the carriage of the same away and they being in Trial of this Suit The Churchwardens by their Counsel moved the Court for a Prohibition to the Vicar to stay him from felling any more Coke Chief Justice This is a good cause of Deprivation if he fell down Timber-Trees and Wood this is a Dilapidation and by the Resolution in Parliament a Prohibition by the Law shall be granted if a Bishop fells down Wood and Timber-Trees The whole Court agreed clearly in this to grant here a Prohibition to the Vicar to inhibit him not to make spoil of the Timber this being as it is called in Parliament the Endowment of the Church Coke we will also grant a Prohibition to restrain Bishops from felling the Wood and Timber-Trees of their Churches And so in this principal Case by the Rule of the Court a Prohibition was granted CHAP. XVI Of Patrons de jure Patronatus 1. What Patron properly signifies in the Law the Original thereof and how subject to corruption 2. In what case the Bishop may proceed de jure Patronatus and how the Process thereof is to be executed 3. How the Admittance ought to be in case the same Clerk be presented by two Patrons to the same Benefice 4. In what cases of Avoydance Notice thereof ought to be given to the Patron and what course in that case the Bishop is to take in case he knews not the true Patron 5. Several Appellations in Law importing Patron 6. How many waies a Church may become Litigious 7. Whether an Advowson may be extended 8. In what case the Patron may Present where the King took not his turn upon the first Lapse 9. A Patron may not take any benefit of the Glâ—be during a Vacancy 10. In what case the Patron shall not by bringing the Writ of Qua. Imp. against the Bishop prevent the incurring of the Lapse to the Ordinary 11. The King is Patron Paramount and Patron of all the Bishopricks in England The Charter of King John whereby Bishopricks from being Donative became Elective 1. PATRON by the Canon Law as also in the Feuds wherewith our Common Law doth herein accord doth signifie a person who hath of right in him the free Donation or Gift of a Benefice grounded originally upon the bounty and beneficence of such as Founded Erected or Endowed Churches with a considerable part of their Revenue De Jur. Patronat Decretal Such were called Patroni à patrocinando and properly considering the Primitive state of the Church but now according to the Mode of this degenerating Age as improperly as Mons à movendo for by the Merchandize of their Presentations they now seem as if they were rather the Hucksters than Patrons of the Church But from the beginning it was not so when for the encouragement of Lay-persons to works of so much Piety it was permitted them to present their Clerks where themselves or their Ancestors had expressed their Bounty in that kind whence they worthily acquir'd this Right of Jus Patronatus which the very Canon Law for that reason will not understand as a thing meerly Spiritual but rather as a Temporal annexed to what is Spiritual Quod à Supremis Pontificibus proditum est Laicos habere Jus Praesentandi Clericos Ordinariis hoc singulari favore sustinetur ut allectentur Laici invitentur inducantur ad constructionem Ecclesiarum Nec omni ex parte Jus Patronatus Spirituale censeri debet sed Temporale potius Spirituali annexum Gloss in c. piae mentis 16. q. 7. Coras ad Sacerdot mater par 1. cap. 2. Yet not Temporal in a Merchandable sense unless the Presentor and Presentee will run the hazard of perishing together for prevention whereof provision is made by that Solemn Oath enjoyn'd by the Fortieth Canon of the Ecclesiastical Constitutions whereof there was no need in former Ages less corrupt when instead of selling Presentations they purchased Foundations and instead of erecting Idol-Temples for Covetousness is Idolatry they Founded Built and Endowed Churches for the Worship of the True God Patroni in jure Pontificio dicuntur qui alicujus Ecclesiae extruendae c. Authores
surmized they had a Custome to place a Clerk there by the Election of the Vestry the Parson sued them in the Ecclesiastical Court to have his Clerk placed there according to a late Canon made It was the Opinion of the Court that it was a good Custome and that the Canon could not take it away wherefore a Prohibition was granted 16. A Bishop Archdeacon Parson are Spiritual Corporations at the Common Law for the Parson and this is meant also of the others hath two Capacities The one to take to him and his Heirs the other to him and his Successors and in that respect he is seized jure Ecclesiae If J. S. be Parson of D. and Land be granted to J. S. Parson and his Successors and to J. S. Clerk and his Heirs in this case he is Tenant in Common with himself 17. Note That it was agreed in Bushie's Case That if a Parsonage be Impropriate and the Vicarage be endowed and difference be between the Parson and the Vicar concerning the Endowment that shall be tried by the Ordinary for the Persons and the Cause are both Spiritual And there the Vicar sues the Parson for Tithes and suggests the manner of Tithing and prays a Prohibition and it was granted and after upon solemn Argument Consultation was granted insomuch that the manner of Tithing did not come in question but the Endowment of the Vicarage only for that is the elder Brother as the Lord Coke said This was cited to be Adjudged by Coke Also there is much difference between Prebends and Parsons for it was Adjudged in Watkinson and Man's Case That a Lease made by a Prebend is good by the Statute of 32 H. 8. for he is not excepted but only Parsons and Vicars and so it was said it had been Adjudged in Doctor Dale's Case 18. It will not be denied but that the Clergy of England have had in all Ages certain Priviledges which the Laity never pretended to To which purpose there have been Laws Enacted and Cases Ruled by persons learned in the Laws In An. 22 H. 8. cap. 5. it is Enacted That the decayed Bridges in every County where it cannot be known who in right ought to repair the same shall be repaired by the Inhabitants of the said County Town Corporate or Riding where the Bridge is by the Assessment of the Justices of Peace who may appoint Collectors to levy the same by Distress Now the Question is Whether the Parsons and the Vicars may be charged by the general word of the Inhabitants and Distress taken on their Spiritual Livings In order to a Resolution of this Question it must be premised That it is most evident that the Clergy are by the Common Law of this Kingdom a divided Estate both for their Persons and Spiritual promotions from the Laity of this Land 1 For their Persons Fitz. N. B. fo 175. That Clerks shall not be chosen Bayliffs or Beadles for the Lands in their possessions although the Land before it came to the hands of the Clerk was charged therewith by tenure 2 A Clerk arraigned before a Temporal Judge for Felony may plead the Jurisdiction of the Court The Clergy-men by reason of their Resiance are not bound to the Leet nor to follow Hugh and Cry 3 That their Spiritual Livings are also discharged from the general charge of this Realms Laity appears by the Register fo 260. F. N. B. fo 227. That Spiritual persons shall not be charged to pay Toll Pontage or Murage but may discharge themselves by Writ Also the Sheriff who by the Law is the King 's general Officer to serve Processes in every County may not intermeddle with the Clergy in respect of their Spiritual promotions but return Quod Clericus est Beneficiatus in Episcoparu non habet Laicum foedum in baliva mea and then the Process must be to the Bishop as appears 34 H. 6. 21 H. 6. This Priviledge is confirmed to them by Magna Charta and divers Grants and Statutes viz. Articulis Cleri 9 Ed. 2. cap. 9. Likewise no Distress shall be taken in the Ancient Donations of the Church The like Grant is made unto them by King Ed. 1. 24. Protestation 2. That the Sheriff or Minister of the King shall not meddle with the Goods Chattels or Carriages of the Clergy and in Purveyors 12. An. 14 Ed. 3. there is a Statute that Purveyors shall not meddle with the Clergy c. Ed. 1. cap. 1. 1 R. 2. cap. 2. 1 H. 4. cap. 3. Statute Spiritualties 2. Priviledges Grants Immunities of the Clergy are confirmed So that it appears both by the Common Law and the Statutes that the Clergy are not to be burthened in the general charges with the Laity of this Realm neither to be troubled or incumbred unless they be especially named and expresly charged by some Statute And divers Statutes heretofore expressing themselves with the like general words have never been expounded to extend to the Clergy as by the usage of them appears by the Statute of Winton An. 13 Eliz. 1. Again the people dwelling in a Hundred where any Robbery is committed shall either bring forth the Felon or agree with him that is robbed yet hath it never been taken that Parsons and Vicars should be Contributors thereunto yet the words Gentes demorantes viz. the People dwelling are as general words as Inhabitants In the same Statute there are the like general words Watching c. yet the Clergy thereby are never charged Also the Statute made for the High-ways An. 2 3. P. M. chargeth every Housholder yet this general Housholder hath never been taken by usage to charge the Clergy viz. the Parson or Vicar Fitz. in his Nat. Bre. fol. 131. saith that a Clerk being bound in a Statute-Merchant shall not be taken by his Body And the Writ founded upon the Statute-Staple 27 Ed. 3. cap. 9. hath this special Proviso Si Laicus Sit capias Also the Statute whereupon this Writ is founded is general and no Exception made at the Clergy And 33 H. 8. cap. 2. there is a Statute that chargeth all Resiants within any Countyâ— where there is no Goal to be Taxed by the Justices for the Building of one yet have the Clergy never been charged by reason of these general words Resiants c. 1 Ed. 1. 18 Ed. 3. 4. 1 R. 2. 1. For these Reasons it is supposed that the general words in the aforesaid Question will receive in Law the like Exposition as the other said recited Statutes have done And the Parsons and Vicars shall not thereby be charged the rather for that the Statute sets down the Inhabitants of the County where the certain persons that should do it cannot be known which is to be intended such Inhabitants as are chargeable to Pontage which Spiritual persons are not but excepted as aforesaid CHAP. XVIII Of Vicars Vicarages and Benefices 1. The Vicar and Vicarage described according to Law 2. What
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
traditur in Commendam quasi comeditur devoratur and such a Benefice may properly be given in perpetuam Commendam Summa summar tit Commenda art 1 2. And by the Rule of the Canon Law he that comes in per Commendam is not Praelatus sed Procurator tantum est nisi Custos seu Administrator jus in Ecclesia non habet 6. Decretal c. Nemo Constit Othobon de Commendis fo 65. And therewith agrees 27 H. 8. 15. where it is said That the Cardinal of York had the Abbey of St. Albans in Commondam and yet was not the Abbot In this Case of a Commendam in Davis Rep. the Original or invention of a Commendam is ascribed to Pope Leo 4. An. Dom. 848. aut eo circiter as appears lib. Decretal caus 23. q. 2. where it is said Vnde Leo 4. scribit Qui plures Ecclesias retinet unam quidem Titulatam alteram vero sub Commendatione tenere debet For by the Ancient Canons and Councils a man could have but one Benefice and yet it is by experience found convenient that sometimes viz. in case of Necessity or Vtility of the Church a man may have the Charge and Fruits of more Benefices than one therefore was that Distinction invented and allowed that although a man shall have but one Benefice in Titulo yet he may have other Benefices in Commenda viz. That another Benefice may be commended and committed to his Custody and Cure until it be provided with an able Incumbent But afterwards there being great Abuses found in the granting of these Commendams by the Ordinaries for omnium rerum quarum est usus potest esse abusus virtute solum excepta says Aristotle another Canon was made in the Council of Lions An. Dom. 1274. for reformation thereof as appears lib. 6. Decretal de Elect. Elect. potesta c. Nemo Nemo deinceps Parochialem Ecclesiam alicui non Constituto in legitima aetate vel Sacerdotio Commendare praesumat nec tali nisi unam evidenti Necessitate vel Vtilitate Ecclesiae suadente Hujusmodi autem Commendam rite factam declaramus ultra Semestre temporis spatium non durare c. But the Gloss there saith That Ista Constitutio non comprehendit Romanum Pontificem ideo Romanus Pontifex potest Perpetuo Commendare So that the Pope notwithstanding that Canon had power to give Benefices in perpetuam Commendam And indeed after the said Council of Lions as the Pope had reserved to himself the sole power of giving Benefices in perpetuam Commendam so he reduced that power into act and used and practised the same in all Realms of Christendom Specially the Popes that were resident at Avignon in France in the times of King H. 2. Ed. 1. Ed. 2. Ed. 3. were very liberal not only in granting these Provisions contrary to our Statutes made in the times of King Ed. 1. Ed. 3. but in giving all sorts of Ecclesiastical Benefices in Commendam perpetuam And as at first it was done for the support of the Dignity of Cardinals as Pope Clement 6. professed in his Epistle to Ed. 3. Hist Walsingham fo 150. b. yet afterwards these Favours were purchased by other Ecclesiastical persons of all degrees in all Nations specially in England and Ireland And whereas the Canon Law says That a man hath a Cononical Title by virtue of a Commendam that must be understood de Commenda perpetua and not de Commenda Temporali for the Commenda Temporalis is but a kind of Sequestration and may be granted by every Ordinary pro tempore Semestri and therefore such a Commendatary non est Praelatus nec Maritus Ecclesiae nec facit Fructus suos sed est Administrator tantum Custos Ecclesiae And such a Commenda non est titulus nec facit titulum sed est quoddam depositum until the Church be provided with a sufficient Incumbent and therefore such a Commenda is commonly granted when the Patron doth not Present an able person or when the Church is Litigious But the Commenda perpetua which continues during the life of the Commendatary cannot be granted by any inferiour Ordinary but only by the Pope in such Countries where he hath Jurisdiction or by the King or his Delegates in this Realm or such whose power therein is derived from him or confirmed by him And this Commenda est titulus Canonicus nam militat eadem ratio in perpetuis Commendis quae in aliis Titulis Lib. 6. de Electionib c. Nemo And so it hath been often adjudged in Rota as Gomez affirms in Regul de Trien Possess where he argues this point Pro Con at large and where he saith That the Faculty of a perpetual Commendam is amplissima dispositio habet ubertatem verborum viz. Licentiam Facultatem fructus omnes percipiendi in proprios usus Convertendi c. Quae verba important Collationem Titulum non Simplex Depositum CHAP. XXII Of Lapse 1. What a Lapse is the gradations and Original thereof 2. The difference between the Canon and Common Law as to the time of Lapse and when the Six months shall begin 3. The King is Patron Paramount of all tbe Churches in England 4. In what Cases the Patron is to take notice of the Avoidance at his peril or not and how the Six months is to be computed by the days 5. A Lapse is not an Interest but a Trust or Administration and may not be transferr'd or granted over 6. How or from what time the Six months shall be computed before the Lapse incurr 7. Whether a Bishop may Collate by Lapse after Six months upon failure of the Clerks shewing his Letters of Orders or his Letters Missive or Testimonial 8. In what case Tempus occurrit Regi in point of Lapse 9. In what cases the King having Title of Lapse may lose his Presentment 1. LApsus or Lapse is a slip or departure of a Right of Presenting to a void Benefice from the Original Patron neglecting to Present within Six months next after the Avoidance to the Ordinary Whence it is commonly said That that Benefice is in Lapse or Lapsed whereunto he that ought to Present hath omitted or slipped his opportunity This Lapse may happen and be the Patron being ignorant of the Avoidance as well as if he were acquainted therewith or privy thereto except only upon the Resignation of the former Incumbent or the Deprivation upon any cause comprehended in the Statute of 13 Eliz cap. 12. In which cases the Bishop ought to give notice thereof unto the Patron In this matter of Lapse there are Three gradations ab Inferiore ad Superiorem after the neglect of the true Original Patron upon whose default 1 the Bishop of the Diocess within whose precincts the vacant Benefice lies shall Collate unless the King be Patron 2 If the Bishop Presents not within the next Six months then the Metropolitan shall Present And
of Six months By the Common Law of England as well Clerks as Laicks have Six months to Present before the Lapse incurr Dr. Stu. 116. b. Per la Com. Ley De Scoce Laici Patroni quadrimestre Ecclesiastici vero Sex mensium spatium habent sibi concessum ad Praesentandum personam idoneam Ecclesiae vacanti Skene Regiam Majestatem 10. b. But Jac. 6. pl. 1. cap. 7. Pl. 7. cap. 102. pl. 12. cap. 119 158. Concedit Patrono Laico spatium Sex mensium infra quod Praesentare debet The Question is not so much when the Term shall end and determine as when it shall commence and from what time the Six months shall be computed The Answer falls under a double consideration or is diversified according to the divers manners of Avoidances for if by Death Creation or Cession the Church be void then the Six months shall be computed from the Death Creation or Cession of the last Incumbent whereof the Patron is to take Notice at his peril But if the Avoidance be by Resignation or Deprivation then the Six months shall begin from the time of Notice thereof given by the Bishop to the Patron who is not obliged to take knowledge thereof from any other than by signification from the Bishop But in case the Avoidance were caused by an Union for so it might be then the Six months should be computed from the time of the Agreement upon that Union for in that case the Patron was not ignorant of but privy to the Avoidance for there could be no Union made but the Patron must have the knowledge thereof and then it was to be appointed who should Present after the Union as whether one or both either joyntly or by turns one after another as the Agreement was upon the Union 3. The Continuance of a Voidance of a Church by the several Lapses of Patron Bishop and Archbishops derives the Title of Presentation at last to the King as Patron paramount of all the Churches in England and wherever the Original Patron by Law ought to take notice of a Voidance at his peril there and in such case by a Non-Presentation within Six months from the time of such Voidance the Lapse will ever incurr And generally by the Admission Institution and Induction to a Second Benefice Prima Ecclesia vacat de persona of the Incumbent vacans continuat till new Induction But when an Archbishop Bishop or other Ordinary hath given a Benefice of right devolute unto him by Lapse of time and after the King Presenteth and taketh his Suit against the Patron who possibly will suffer that the King shall recover without Action tried in deceipt of the Ordinary or the possessor of the said Benefice In such and all other like cases where the Kings Right is not tried the Archbishop Bishop Ordinary or Possessor shall be received to counterplead the Title taken for the King and to have his Answer and to shew and defend his Right upon the matter although that he claim nothing in the Patronage so that the Ordinary may Counterplead the Kings Title for a Benefice fallen to him by Lapse Also when the King doth make Collation or Presentment to a Benefice in anothers Right the Title whereupon he groundeth himself may be well examined that it be true which if before Judgment it be by good information found to be otherwise the Collation or Presentment thereof made may be Repealed whereupon the true Patron or Possessor may have as many Writs out of Chancery as shall be needful There are some Statutes the King not being bound by Lapse of Time for nullum Tempus occurrit Regi which are good remedies and reliefs for the Ordinary that hath Collated by Lapse as also for the Clerk that is Collated for otherwise a Common person might by Practice have turned out a lawful Collatee to which purpose the Lord Hobart doth instance in a Case A Common person no true Patron Presents within Six months and the true Patron himself Presents not in time whereupon the Ordinary Collates by the Lapse against whom the Pretender brings a Quare Impedit because his Clerk was refused wherein he must needs prevail if his Title be good and it must be taken for good because neither Ordinary nor Incumbent could deny it for de non apparentibus de non existentibus eadem est ratio which Inconvenience is remedied by the said Stat. of 25 E. 3. c. 7. Note that Lapse doth not incurr to the Ordinary by reason of his not examining the Clerk within Six months Trin. 3 Jac. B. R. inter Palmer Smith Resolved per Cur. 4. If a Plea be depending between Two parties and it be not discussed and determined within Six months the Bishop may Present by Lapse and he that hath the Right to Present shall according to the Statute recover his Dammages But it is expresly provided by the Statute of 13 Eliz. 12. That no Title to Collate or Present by a Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron But if the Church become void by Death Creation or Cession of the last Incumbent the Patron is at his peril to take Notice of such Avoidances within the next Six months thereof But if it become void by Deprivation or Resignation the Clerk is not obliged to tender his Presentation to the Bishop nor the Patron obliged to Present his Clerk but within Six months next after Notice legally given him by the Ordinary of the Avoidance by such Deprivation or Resignation which Six months are to be calculated or computed by 182 days and not by 28 days to the Month Nor is there any Addition of time over and above the Six months allowed the Patron to Present from the Vacancy a Second Clerk in case the former were legally refused by the Bishop Yet the Ordinary may not take advantage of the Lapse in case the Patron Present his Clerk before the other hath Collated though it be otherwise with the Canonists Lindw c. Si aliquo evincente c. verb. Injuria But if the Bishop Collate and the Patron Present before Induction in that case it seems he comes too late And at the Common Law Sir Simon Degge in his Parsons Counsellor makes it a doubtful Question if the Church Lapse to the King and the Patron Presents before the King take advantage of the Lapse whether this shall avoid the Kings Title by Lapse This says he is a Question by Dyer though Hobart seems to be clear in it that the King shall not have the benefit of the Lapse but adds that divers Authorities are against them And in the Cases aforesaid wherein Notice of Avoidance ought to be given to the Patron before the Lapse can incurr the Patron is not obliged to take Notice thereof from any person other
as Patron claiming the Patronage to himself for such a Collation doth amount to a Presentation and here are two or three Collations pleaded which should put the Queen out of possesion although she shall not be bound by the First during the life of the first Incumbent Vid. Br. Quare Impedit 31. upon the abridging of the Case of 47 E. 3. 4. That two Presentments the one after the other shall put the King out of possession and put him to his Writ of Right of Advowson which Anderson denied And it was holden by the whole Court here is not any Presentation and then no possession gained by the Collations and although the Bishop doth Collate as Patron and not as Ordinary yet it is but a Collation And there is a great difference betwixt Collation and Presentation for Collation is a giving of the Church to the Parson but Presentation is a giving or offering of the Parson to the Church and that makes a Plenarty but not a Collation 3. The Collation of the Ordinary for Lapse is in Right of the Patron and will serve him for a Possession in a Darrein Presentment as appears by Colt and Glover's Case against the Bishop of Coventry and Lichfield where it is said That the Ordinary or he that presents by Lapse is a kind of Attorney made by Law to do that for the Patron which it is supposed he would do himself if there were not some lett and thefore the Collation by Lapse is in right of the Patron and for his turn 24 E. 3. 26. And he shall lay it as his possession for an Assize of Darrein Presentment 5 H. 7. 43. It seems also by Gawdy's Case against the Archbishop of Canterbury and others That although a Bishop Collate wrongfully yet this makes such a Plenarty as shall barr the Lapse of the Metropolitan and the King And this Collation by Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and King the Title of Lapse being rather an Administration than an Interest as in Colt's Case aforesaid which Title of Collating by Lapse may be prevented by bringing a Quare Impedit against the Bishop Also where and in what Cases the bringing of that Writ against the Bishop shall or shall not prevent such Collation appears in the Case of Brickhead against the Archbishop of York as Reported by Sir Hen. Hobart Chief Justice 4. Presentation is the Nomination of a Clerk to the Ordinary to be Admitted and Instituted by him to a Benefice void and the same being in Writing is nothing but a Letter Missive to the Bishop or Ordinary to exhibite to him a Clerk to have the Benefice voided the Formal force hereof resteth in these words viz. Praesento vobis Clericum meum Thus Presentation properly so called is the act of a Patron offering his Clerk to the Bishop to be Instituted in a Benefice of his Gift It is where a man hath a Right to give any Benefice Spiritual and presents the person to the Bishop to whom he gives it and makes an Instrument in writing to the Bishop in his favour and in case there be divers Coheirs and they not according in the Presentation that which is made by the eldest of the Coheirs shall be first Admitted but if it be by Joyntenants or Tenants in Common and they accord not within Six months the Bishop shall present by Lapse By the Statute of 13 Eliz. cap. 12. a Presentation of an Infant to a Benefice is void And although a Presentation being but the Commendation of a fit person by the Patron to the Bishop or Ordinary to be Admitted and Instituted into a Benefice may be done either by word alone or by a Letter or other writing yet the Grant of a next Avoidance is not good without Deed But a Presentation being no other than a Commendation of a Clerk to the Ordinary as aforesaid and only a thing concerning an Advowson without passing any interest of the Inheritance of the Advowson may be done by word only upon which ground it was Resolved by the whole Court That the Kings Presentation unto an Advowson Appendant to a Mannor parcel of his Dutchy under the Great Seal of England without the Seal of the Dutchy was well made and good Yea and for the same Reason for that a Presentation is but a Commendation and toucheth not the Inheritance was the Kings Presentation to the Deanary of Norwich held good albeit in the said Presentation he mistook and mis-recited the Name of the Foundation of the Deanary 5. A. seized of an Advowson in Fee Grants Praesentationem to B quandocunque quomodocunque Ecclesia vacare contigerit pro unica vice tantum in the Grant there was further this Clause viz. Insuper voluit concessit That the Grant should remain in force quousque Clericus habilis idoneus shall by his Presentation be Admitted Instituted and Inducted Afterwards A. grants away the Advowson in Fee unto S. The Church becomes void S. Presents The Church becomes void again S. Presents G. upon a Disturbance of M. the Presentee of B. the First Grantee a Quare Impedit is brought The Question was Whether B. the First Grantee not Presenting upon the First Avoidance had lost the benefit of his Grant In this Case it was Adjudged by the whole Court That although A. the Grantor grants Donationem Praesentaâ—ionem quandocunque Ecclesia vacare contigerit pro unica vice tantum yet B. ought to have taken the first Presentation that happened and hath not Election to take any turn other than the First when the Church first became void and by his neglect in not Presenting then had lost the benefit of his Grant and the subsequent words in the Grant are but only an Explanation of the words precedent and relate to the next Avoidance 6. The Right of Presentation is a Temporal thing and a Temporal Inheritance and therefore belongeth to the Kings Temporal Laws to determine as also to make Laws who shall Present after Six months as well as before so as the Title of Examination of Ability or Nonability be not thereby taken from the Ordinary The Law is the same touching Avoidances for it shall be judged by the Kings Temporal Laws when and whether the Church may be said to be void or not the cognizance whereof doth not belong to the Kings Ecclesiastical Laws and therefore where a Parson is made a Bishop or accepts another Benefice without License or Resigneth or be Deprived In these cases the Common Law would hold the Church void albeit there were any Ecclesiastical Law to the contrary And it is sufficient for the Ordinary's discharge if the Presentee be able by whomsoever he be Presented which Authority is acknowledged on all sides to have been ever inherent in the Ecclesiastical Jurisdiction But as to the Right of Presentation it self to determine who ought to Present and who
is Created Bishop and dies Incumbent it seems the King shall not Present to the Church by his Prerogative for that the Church is not void by his being made a Bishop in which case the Prerogative gives the Presentation to the King but by the death of the Incumbent in which case the Prerogative doth not take place Co. Ent. 474. Hele's Case there pleaded that in such case the Church is void by death and admitted that it belongs to the Patron to present upon his death 24. If a Church whereof a Bishop in right of his Bishoprick is the Patron becomes void after the death of the Bishop and before the Seizure of the Temporalties yet the King shall have the Presentation And if a Church belonging to the Patronage of a Bishop become void and the Bishop Present and die before Institution the King shall have that Presentation by his Prerogative So if a Bishop die after Institution of the Clerk and before Induction the King shall have the Presentation by his Prerogative Also if Lapse incurr to the Ordinary and before the Six months pass the Ordinary is Translated or dies it seems the King shall have the Presentation and not the Ordinary or his Executors or the Guardian of the Spiritualties P. 40 El. B. Dubitatur Hob. Rep. 208. in case of death But if a Bishop having right to present to a Prebend and present his Clerk who is Instituted and Inducted in the Morning and Afternoon the same day the Bishop dies whereby the Temporalties come into the Kings hands yet the King in that case may not have the Presentation 25. The Patronage of the Deanary of an Archbishoprick doth of Common right belong to the Archbishop and he shall Present to the Avoidance But by Composition it may be Elective by the Chapter and yet the Patronage remain in the Archbishop And where a Parson ought to present to a Vicarage if the Vicarage become void during the vacancy of the Parsonage the Patron of the Parsonage shall present 26. An Alien who is a Minister may be presented to a Church and Anciently it was usual for Aliens to have Spiritual promotions here and Priors Aliens had great possessions in England and were Parsons Appropriate yet by the Statutes of 13 R. 2. 1 H. 5. French-men are disabled from having Benefices in England and French-men Denizon'd Sed Qu. whether they continue of force at this day And if a meer Lay-man or a man altogether illiterate be presented Instituted and Inducted it is not in Construction of the Common Law a meer Nullity but such are Parsons de facto but if a Woman be Presented Instituted and Inducted it is a meer Nullity at that Law because her Incapacity is apparent 27. If a man present his Clerk to the Bishop and he die before he is received he may present another and although a man hath presented his Clerk to the Bishop yet he may present another at any time before the Bishop shall have received such his Clerk 28. If J. S. Present and his Clerk be Admitted and Instituted before Induction J. D. cannot Present his Clerk for the Church was Full before as to a Common person for by the Institution he had Curam animarum But where a Common person Presents and his Clerk be Admitted and Instituted yet before Induction the King if he hath Right may Present and his Clerk shall be Instituted for the Church is not Full as against the King before Induction But if the King hath not right to the Church in that case the Church is Full by the Admission and Institution of a Common person's Clerk without Induction as against the King so as that he may not in that case Present 29. If a Bishop Collate without any good Title of Lapse or otherwise and then the Patron die after the Six months claps'd and his Executor bring Quare Impedit by force of the Statute of 4 E. 3. and the Bishop and Incumbent plead Plenarty by Six months it was Adjudged no Plea on Demurrer for that the Collation is not any Plenarty being Tortious Also if a Bishop Collate without a good Title of Lapse it puts not the Patron out of possession but he may Present afterwards albeit the Bishop's Clerk were Instituted and Inducted 30. A Common person may Present to a Church per Parol and if it be by Writing yet it is not any Deed but only in nature of a Letter to the Bishop Also the King may Present either by his Letters or per Parol without Writing But if the King be deceived in his Title it will be a void Presentation And if the King grant a Presentation by his Letters by the words damus Concedimus without other words of Presentation yet it seems it shall amount to a Presentation and be a sufficient Warrant for the Bishop to Institute him Dubitatur 19 E. 3. Quare Impedit 60. A Common person by his Letter or his Word may make a Presentation to a Benefice to the Bishop the King may Present by Word if the Ordinary be present if the King under any Seal present it is good And Mich. 10 Jac. it was held by the whole Court that a Presentment under the Great Seal to a Church parcel of the Dutchy of Lancaster is good and needed not to be under the Dutchy-Seal Where a man accepts a Second Benefice with Cure without a Dispensation or Qualification the First Benefice is void and the Patron may Present but if he doth not Present then if it is under value no Lapse shall incurr until there is a Deprivation and Notice But if it be above value then the Patron must Present within Six months The King seized of an Advowson in the Right of his Dutchy of Lancaster Presented to it under the Great Seal and not under the Seal of the Dutchy And Resolved That the Presentation was good for the Presentation is but a Fruit fallen from the Tree and the King may Present by word because a Presentation is but a Commendation of the Clerk to the Ordinary A man seized of an Advowson in Fee granted to another and his Heirs that when the Church should become void that the Grantee and his Heirs should Nominate a Clerk to the Grantor and his Heirs and he and his Heirs should Present him to the Ordinary Resolved That if he who hath the Nomination Present he which ought to Present shall have a Quare Impedit against him and è contra In Beverley and Cornwell's Case it was Resolved That if any Advowson comes to the Queen for Forfeiture by Outlawry and the Church becomes void and the Queen Presents and then the Outlawry is reversed for Error yet the Queen shall enjoy the Presentment because it came to the Queen as a profit of the Advowson but if the Church be void at the time of the Outlawry and the
Or thus The Next Avoidance was granted to Two the one Released to the other who brought a Quare Impedit in his own Name and it was adjudged maintainable because it was before the Church was void 20. A. seized of the Mannor of D. to which an Advowson was Appendant granted the Next Avoidance to B. and D. eorum cuilibet conjunctim divisim Haered Executor Assignatis suis The Church void B. Presents D. to the Church Adjudged that the Presentment of him was good though he were one of the Grantees CHAP. XXVI Of Pluralities 1. Pluralities condemned by the Council of Lateran yet dispenc'd with by Kings and Popes 2. What in this matter the Pope anciently exercised by way of Vsurpation the King may now do de jure The difference between them in the manner how 3. What persons are qualified for granting or receiving Pluralities 4. Several Laws relating to Pluralities Dispensations and Qualifications 5. How the 8 l. annual value of a Benefice shall be understood whether as in the Kings Books or according to the true value of the Benefice 6. The Lord Hobart's Opinion touching the Statute of 21 H. 8. relating to Pluralities 7. What the Pope's Power in England was before the making of the said Statute And whether the taking of a Bishoprick in Ireland by a Dean in England makes the Deanary void by Cession 8. The Chaplains of Persons of Honour having divers Benefices shall retain them for their Lives though they be discharged of their Service 9. Whether the Ecclesiastical Court may take cognizance of Plenarty or Voidance after Induction And whether the cognizance of Cession or no Cession belongs to the Temporal or Spiritual Count. 10. Difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law 11. A Prohibition granted upon Sequestration of a Benefice by the Bishop 12. The Fifth Paragraph aforesaid Adjudged and determined 13. How the Voidance in case of Three Benefices in one person 14. Benefice not void if the King License the Incumbent to be an Incumbent and a Bishop 15. How the taking of a Second Benefice is a Voidance of the First 16. Whether so in case of a Chaplain of the King 17. Whether so in case of a Si modo or Modo sit by way of a Limitation in the Dispensation 18. Whether the word Dispensamus be necessary in the Letters of Dispensation for a Plurality 19. The Kings Retainer of a Chaplain by Word only qualifies him for a Plurality within the Statute of 21 H. 8. 20. Whether a Third Chaplain retained by a Countess Widow is qualified to purchase a Dispensation for Plurality 21. In reference to Plurality whether regard is to be had to the value mentioned in the Statute of 25 H. 8. or to the true value of the Benefice 22. Whether Admission and Iustitution makes the First Benefice void without Induction 23. Whether before the Statute of 25 H. 8. the Pope might here grant Dispensations for Pluralities 24. Whether the Retainer of a Chaplain may be good and sufficient without a Patent 25. In what case a Dispensation for Plurality may come too late though before Induction 26. Three Resolutions of Law in reference to Avoidance by reason of Plurality 1. PLurality according to the Common acceptation of the word is where one and the same person is possessed of Two or more Ecclesiastical Benefices with Cure of Souls simul semel It was long since condemned by the general Council of Lateran whereby it was Ordained That whatever Ecclesiastical person having one Benefice with Cure of Souls doth take another such shall ipso jure be deprived of the former and if he contest for the retaining thereof shall lose both Notwithstanding which Canon it was heretofore usual with the Pope to usurp a power of Dispensation in this matter the which de jure was anciently practised by Kings as Supream and as the original Donors of Benefices and Ecclesiastical Dignities witness Edmond that Monk of Bury who by virtue of such Dispensations held several Ecclesiastical Benefices at one and the same time The said Canon as to the substance thereof relating to Pluralities is now Confirmed by the Statute of 21 H. 8. 13. which limits the former Benefice with Cure of Souls to the yearly value of Eight pounds or upwards and the time of Avoidance thereof to be immediately after possession by Induction into the other with Cure of Souls with power of Presentation de novo granted to the Patron of the former Benefice and all benefit of the same to the Presentee as if the Incumbent had died or resigned Q. Whether the said yearly value of Eight pounds or above ought to be computed according to the valuation in the Kings Books as returned into the Exchequer and now used in the First-Fruits Office or according to the just and true value of the Benefice Q. likewise Whether a Parson of a Church Impropriate with a Vicar perpetually endowed accepting of a Presentation unto the Vicarage without Dispensation be a Pluralist within the Canon and Statute aforesaid The Negative is supposed to give the best Solution to the Question 2. The same power of granting Faculties Pluralities Commendams c. which anciently the Pope exercised in this Realm by Usurpation is by the Statute of 21 H. 8. cap. 13. and 1 Eliz. transferr'd unto and vested in the Crown de jure also from and under the King in the Archbishop of Canterbury and his Commissaries by Authority derived from the Crown The Pope anciently granted to Bishops after Consecration Dispensations Recipere obtinere Beneficium cum cura animarum to hold the same in Commendam the which he did in this Realm by Usurpation and which the Crown may now do de jure for the same power as aforesaid which the Pope had is by the Acts of Parliament in 25 H. 8. 1 Eliz. in the King de jure But there is a very material difference between the Dispensations anciently here granted by the Pope and those at this day by the King and Archbishop Confirmed by the Kings Letters Patents which are not good otherwise than to such as are Compleat Incumbents at the time of granting thereof whereas it was sometimes otherwise with the other whence it is observable that in Digbie's Case the Dispensation came too soon A. is Instituted and Inducted into a Benefice with Cure value Eight pounds per ann Afterwards the King presenting him to another with Cure he is Admitted and Instituted Afterwards the Archbishop of Canterbury grants him Letters of Dispensation to hold Two Benefices the King confirms the same Afterwards he is Inducted into the Second Benefice In this case the Dispensation comes too late because by the Institution into the Second Benefice the First Benefice was void by the Stat. of 21 H. 8. 3. The Acceptance of a Second Benefice with a Dispensation comes not under the notion of prohibited Pluralities in case
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
if he please to increase the part of the Vicar and there was not power of diminution As by Hutton It is also usual in such Compositions and they say That the word Altaragium shall be expounded according to the use as if Wood had alwaies been paid to the Vicar by virtue of this word so it shall continue otherwise not And so it had been Ruled in the Exchequer and upon that President it was Ruled accordingly so in this Court And by them Wood is Minuta decima as in the case of St. Albans it was Ruled 5. In a Trial at the Barr in an Action of Trespass the Question arising between the Parson and the Vicar as touching Tithe-Wood and to whom the same belonged As to this by the Opinion of the whole Court clearly the Parson de mero jure ought to have the Tithe-Wood if the Vicar be not Endowed of the same or claims to have it by Prescription but without such a Dotation or Prescription the same belongs to the Parson Another Question was propounded for the Vicar who entitles himself unto the Tithe-wood by these words Altaragium and Minutae Decimae whether these words will carry the Tithe-Wood unto him or not As to this the exposition and true definition of this word Altaragium is considerable and to whom this is due Altaragium as was observed is that which is due to be served at the Altar Wilâ—iams Justice Altaragium is that only and properly which is offered at the Altar and Minutae Decimae are the Small Tithes also the word Altaragium will not carry Tithe-Wood And this is the Question here Whether the Vicar by this word Altaragium hath Title to the Tithe-Wood Crook Justice This word Altaragium doth not carry the Tithe-Wood which are great Tithes but Minutas Decimas which are petit small Tithes Minutae Decimae Altaragia the Vicar as was urged is to have them by his Composition and that by these words he is to have Tithe-Wood Fleming Chief Justice There is an Usage here laid in the Vicar to have the Tithe-Wood by reason of these words Altaragia Minutae Decimae the which the Vicar can no waies have but by Prescription or by such a Usage and so the same may pass by these words Altaragia Minutae Decimae and the Usage had accordingly Also Sheaves of Corn have passed by Usage to the Vicar by the words Altaragia Minutae Decimae and so it was Adjudged in the Court of Exchequer The Judges all agreed in this That by these words Altaragia Minutae Decimae by Usage Tithe-wood may well pass and so hath the Opinion of all the Civilians been Fleming Chief Justice and the rest of the Judges agreed in this That by Usage the word Altaragia shall be accounted inter Minutas Decimas Williams Justice By the word Altaragia Tithe-Wood doth not pass but if the Vicar have used to have the same time out of mind This is good and shall pass under the words of Minutae Decimae Fleming Chief Justice Though the Law be against it that Tithe-Wood doth not pass by these words yet by Usage it hath been allowed good to carry Tithe-Wood by these words being of small value and by such Usage Tithe-Wood may pass though the Law be against it CHAP. XXXII Of Tithes 1. What Tithes are the Original thereof in England with the Division and Subdivision thereof 2. Whether the Quotity be Moral or only of the Ceremonial or Judicial Law The Institution of Tithes the lawfulness thereof under the Gospel it is Sacriledge Theft and Robbery to withhold them 3. The Common Arguments against the payment of Tithes Answered 4. A Fourfold Division of Tithes under the Levitical Law 5. The Schoolmens conceit touching the Division of Tithes in allusion to the Division of the Law of Moses 6. Tithes anciently Ecclesiastical are now Temporal Inheritances several Laws touching Tithes in general 7. What the Common Law of England understands by Tithes The first obstruction thereof by Charles Martel 8. The supposed Reason why Tithes before the Lateran Council might be paid to any Church or any Priest The original Division of England into Parishes 9. The Exact provision anciently as well before as since the Conquest made by the Sovereign Kings and Princes of this Realm for the due payment of Tithes 10. The Supposition of the Parâ—chial Right of Tithes to be settled by a Canon of the Council of Lateran Contradicted 11. Whether a Parson may make a Lease parol of his Tithes 12. Tithes discharged by Vnity of possession 13. A Covenant between Parson and Parishioner touching Non-payment of Tithes 14. Whether Proof by one Witness in case of Tithes ought to suffice in the Ecclesiastical Court 15. Tithe-Wool and Rotten Sheep Tithe-Calves 16. Tithe-Headlands Tithe-Wool Lamb and Wool included in Samll Tithes 17. Tithe-Wool of Sheep depastured in one Parish and shear'd in another 18. Suit for the Tithe-Grass of a Riding Nagg 19. Modus decimandi touching Tithe-Wool and Lamb. 20. Park-Tithes Buck and Doe not tithable what Partridges and Pheasants are not tithable 21. Saffron whether it be Small Tithes Venisâ—n not tithable 22. Prohibition for not allowing Proof by one Witness 23. An Action of the Case lies against a Parson that takes not away in due time his Tithe-Corn set out 24. The Parishioner not obliged to divide the Tithes into Moities where two persons have portion of Tithes by halves 25. A Custome of not tithing the odd Sheafs good 26. Whether Tithes shall be paid of the Glebe leased to a Farmer 27. Whether Tithes may be Leased or Released without Deed 28. A Parson may Sue in the Ecclesiastical Court pro modo Decimandi 29. Whether that Court may proceed therein in case the Modus be denied 30. In what case the Right of Tithes is triable in the Exchequer 31. A Case in Law touching Prescription and of Tithes of a Park Disparked 32. What things are reputed Majores what Minores Decimae and how they may vary according to the Circumstances 33. Whether Tithes are payable of Cattel for the Dairy or the Plough 34. Whether a Dean and Chapter be capable de non decimando their Lands 35. Touching Tithe-Herbage of young Cattel of Hedge-stuff of Orchards and the Custome of Hearthy-peny 36. Tithe-Fish Customary Tithe whether Prohibition or not 37. Acorns tithable if sold whether Pidgeons if spent in the house 38. Several Cases touching Discharges of Tithes 39. Hay of Headlands whether tithable 40. Prescription for discharge of Tithes upon payment of 10 s. per ann 41. A Forrest in the Kings hands is priviledged of Tithes not so in the hands of a Subject The Right of Tithes between Parson and Vicar triable in the Ecclesiastical 42. Whether Tithe shall be paid for Hedge-boot and Fire-boot 43. Touching Tithe of young Cattel of Hedging and Fencing of the Herbage of Heifers and Horses of Dry-Cattel and of Gardens how far tithable or not 44. Apples stollen out of the Orchard not
sole Prince conferred the Tithes of all the Kingdom upon the Church by his Royal Charter Of which Ingulph Abbot of Crowland An. 855. saith That King Ethelwolph with the consent gratuito consensu of his Prelates and Princes did first enrich the Church of England with the Tithes of all his Lands and Goods Many other Laws of the Saxon Kings for the payment of Tithes are recited by Mr. Selden as entirely the Gift of Kings And so saith King Elred Nemo auferat à Deo quod ad Deum pertinet Praecessores nostri concesserunt The whole Bishoprick Anciently was in a large sense a Paroecia and the income of it by Contributions first and by Tithes also afterwards was the Common stock of all the Clergy of the Diocess and Mr. Selden asserts it to be the general Opinion of all the Common Lawyers That before the Lateran Council under Innocent 3. every man might have given his Tithes to what Church he would probably within the Diocess because they were not the Propriety as yet of any one Presbyter but the Common Patrimony of all the Diocesan Clergy So that Tithes are a Tenth part of all increase Tithable due to God and consequently to his Ministers that wait on the Altar These are divided into Three sorts 1. Praedial Tithes arising only either of the Fruits of the Ground as Corn Hay Hemp and the like or of the Fruits of Trees and Orchards as Apples Pears and the like 2. Personal Tithes arising of the profits that come by the labour and industry of Man either by Handicrafts as Carpenters Masons and the like or by Buying Selling or Merchandizing 3. Mixt Tithes arising partly of the Ground and partly of the Industry of Man as of Calves Lambs Piggs Milk Cheese and the like No Tithes shall be paid for such things as do not increase and renew year by year by the Act of God Of Praedial Tithes some are called Majores vulgarly termed the Great Tithes others Minores vel Minutae vulgarly the Small Tithes The Great such as Wheat Rye Hay c. The Small such as Min◠Annis Cumin c. And commonly with us here in England we compute Flax in the number of Small Tithes which is a Praedial Tithe as also Wool Milk Cheese Eggs Chicken of all kinds Lambs Honey Bees-wax and the like Vid. Lindw cap. de Decimis In Ancient times the Laity were so far from subtracting their Tithes as is the common practice of these daies that oft-times they would give more than was due or demanded and were so Conscientious in the payment thereof as at their death they usually bequeathed a Soule-Sceat to their Parochial Priest in lieu of any Tithes forgotten and at their Funerals caused their best Ox or Horse to be led with the Corps and as a Mortuary or Oblation given to the Priest in recompence of any Tithes which possibly in their life-time might have been omitted to be paid But in these latter Ages not regarding what S. Hierom says That Fraudare Eccelsiam est Sacrilegium all Artifices imaginable are put in practice to subduct the Tithes and therefore to enforce the due payment thereof were the Statutes of H. 8. and Ed. 6. made and enacted 2. Covarruvias with other Canonists and Schoolmen holds That by the Moral Law the rate or proportion of Tithes is not necessarily to be the Tenth part of the Fruits which the more received Opinion holds to be both Erroneous and Mischievous and that by the Law of God and Nature no Custome deviating from the exact rate and proportion of the Tenth of the Fruits ought to prevail any longer than by the free and mutual consent of Parson and Parishioner For which reason it is supposed That the paying of a Halfpeny for a Lamb or a Peny for a Calf by such as have under Seven in one year is now become an unreasonable Custome in regard the value of such Lambs and Calves is now raised four times higher than in Ancient times This seems far remote from Tithes the very Quotity whereof seems to be Moral rather than Ceremonial or Judicial and not only allowed or approved but even commanded by our Saviour himself Yea by the very Law of Nature which is the ground of the Moral Law and long before the Levitical Tithes appear to be due in that Abraham paid it to Melchisedec And God himself who is the best Interpreter of his own Law calls the detention of Tithes Sacriledge And that Command of Christ affirming that Tithes ought to be paid of all even to the very Herbs spoken by him at the period of the Levitical Law ought not to be restrained only to the Priesthood of Aaron for it doth now remain in force as to Priests under the Gospel as that other part of the Moral Law Thou shalt not steal the withholding of Tithes being expresly interpreted Theft and Robbery by the Prophet And lest it should be thought a meer Human Interest or in the power of Man to alienate God himself hath vouchsafed to take Tithes upon his own account in his Ministers behalf These Tithes could not be meerly Ceremonial as some would have it for they prefigure nothing nor are they repealed by any one Text in the Gospel but reinforced as aforesaid so that whatever was commanded in the Old Testament and grounded on the Law of Nature and being not Repealed in the New must yet stand in force as a Duty of the Moral Law And if it be Objected That Tithes were not paid in the Primitive times of the Christian Church the Reason is not because they were not then due but because there was not then any such settled Order for things of this or the like nature in the Church 3. Wherefore all the Common Objections made against the payment of Tithes in the Christian Church may be reduced to one of these Four 1. That our Saviour gave no Command to his Apostles to take Tithes but rather on the contrary said Freely ye have received freely give Answ Yet our Saviour says These things speaking of Tithes ought you to have done And says The workman is worthy of his meat And St. Paul says The Labourer is worthy of his Reward Where hath Christ in totidem verbis forbidden Sacriledge wilt thou therefore commit it because he hath not in terminis terminantibus forbidden it Thou that abhorrest Idols dost thou commit Sacriledge 2 Tithes were not paid till about three hundred years after Christ as Tertullian Origen and S. Cyprian do testifie Answ These Fathers do withal acknowledge that during that time the Churches Maintenance was the Peoples free Contribution which probably might have continued to this day had not that Contribution in process of time turned into a Sacrilegious Century by Covetousness instead of a Commanded Decuma as a Duty Morally enjoyn'd 3. That Tithes came first into this Kingdom by the power of the Pope as by Pope
qualities of the Persons of whom they were begotten 6. The different modes of prosecution of Bastardy in the Temporal and Ecclesiastical Courts 7. Limitation of Time in reference to Birth and Bastardy by the Civil Law The chast Widow of Paris whose Child born the 14 th Month after her Husbands death was adjudged Legitimate 8. Of a Child born before Marriage or immediately after Marriage or long after Marriage of a Woman whose Husband dyed without Bedding her whether Bastard or not 9. The legal computations of Time touching the Birth of a Child whether Legitimate or not And of such as are begotten after a Divorce 10. The punishment of a Woman having a Bastard that may be chargeable to the Parish 11. How the same Person may in divers respects be both a Bastard or Nullius Filius and yet a Son 12. The Physicians report in Court in a Case at Common Law how long a Woman may go with Child 13. The Bishops Certificate requisite in a Plea of Bastardy indisability of a Plaintiff 14. The power of the Justices of the Peace and of the Sessions in reference to the reputed Fathers of Bastards 15. In an Action for saying such an one had a Bastard a Prohibition to the Ecclesiastical Court because they admitted the Defendants Confession but would not allow of his Justification 16. Who are held as Bastardiz'd at the Common Law 17. What a Mulier is at Common Law 18. Other Descriptions of Muliers and Bastards 19. The difference between the Civil and Common Law in point of Muliers and Bastards 20. What kind of Divorce shall Bastardize the Issue 21. Different Resolutions touching Bastardy 22. A Man is Divorc'd Causa Frigiditatis Marries again hath Issue by the second Wife the first Living Q. Whether that Issue be a Bastard 23. A Case of Remark touching this Subject adjudg'd in Ireland 1. BASTARD Bastardus Nothus Spurius Filius Naturalis Filius Populi Filius nullius Incestuosus Adulterinus illegitimo coitu Progenitus Bastard is a French word Bastardd Brittish yet some are of opinion that the word Bastard hath its derivation from two German words Boes art that is Degeneris ingenii Q. an non è Graec. Bassaris i. e. Meretrix vel Concubina Bastard and Filius Naturalis are both one Bastard is that Male or Female that is begotten and born of any Woman not Married so that the Childs Father is not known by order and judgment of Law for which reason he is called Filius Populi 2. Bastard and Mulier are opposed each to other at the Common Law Otherwise at the Canon Law For at the Common Law by Mulier is meant and understood one that is lawfully begotten and born and therefore where they are compared together we shall find at that Law this addition to them Bastard eigne or Elder and Mulier puisne or Younger and by the Common Law he or she that is born before Marriage celebrated between the Father and Mother is called a Bastard and by that Law a Child begotten and born of a Woman out of Marriage by one who after Marrieth her is said to be not a Mulier but a Bastard This word Mulier seems to be a word corrupt from Melior or the French Melieur signifying at Common Law the lawful issue preferr'd before an Elder Brother born out of Marriage But by Glanvile such Lawful Issue seems rather Mulier than Melior because begotten à Muliere and not ex Concubina for he calls such issue Filios Mulieratos opposing them to Bastards Quia Mulieris appellatione uxor continetur l. Mulieris 13. ibid. gloss De verb. sign 3. Bastardy Bastardia at the Common Law signifieth a defect of Lawful Birth objected to one begotten out of Marriage which Law doth distinguish Bastardy into Special and General The later whereof being only a Certificate from the Bishop of the Diocess to the Kings Justices after just enquiry made whether the Party enquir'd of be Bastard or not upon some question of Inheritance and the former being only a Suit commenced at Common Law against him that calls another Bastard This being called Bastardy special because Bastardy is the principal and special matter in Tryal As the other is called Bastardy General because Inheritance is there the chief thing under debate and in contest By both these significations Bastardy at the Common Law seems to be taken only for an Examination or Tryal whether a Mans Birth be illegitimate and so does but rather imply what it is not than express what it is Which according to a better Definition is an unlawful state of Birth disabling the Partie to succeed in Inheritance 4. It appears by what hath been said that a Bastard is one that is born of any Woman so as the Father be not known according to the order of Law So that if any Woman hath a Child before her Marriage it is a Bastard And though the Father thereof after Marry the Mother yet in the judgment of the Common Law it is still a Bastard but at the Canon Law it is otherwise as aforesaid If one Marry infra gradui Maritagii and hath thereby Issue Q. whether it he a Bastard or Mulier in case Divorce doth after thereupon ensue If there be Issue by a second Husband or Wife the former then living such Issue is a Bastard A Woman Eloping from her Husband and Living in Avoutry her Husband being beyond Sea that he cannot come at her having Issue in this time this Issue seems to be a Bastard But by the Common Law if the Husband be infra quatuor maria he within the Jurisdiction of the King of England and his Wife have Issue in his absence No proof is Admissable to prove the Child a Bastard unless there be an apparent impossibility of Procriation in the Husband in which case such Issue albeit born within Marriage is a Bastard And by the Civil Law if the Husband be so long absent from his Wife or by no possibility of Nature the Child can be his or the Adulterer and Adulteress be so known to keep company together as that by just account of time it cannot fall out to be any other Mans Child but the Adulterers himself it is accounted to be a Bastard And yet in these very cases within this Realm unless the Husband be all the time of the impossibility of Procreation as aforesaid beyond the Seas the Rule of Law will hold true Pater is est quem Nuptiae demonstrant Note in debt upon an obligation by Cook Chief Justice And so was the Opinion of the Civilians That a Disagreement to the Marriage had under the Age of of Consent at the Age it ought to be published in Court otherwise the Issue may be Bastarded For a Disagreement in Writing is not a sufficient Disagreement nor a good Proof 5. The Law hath given several Appellations for the distinction of Bastards according to
may be discerned Whether the Pope may be Simoniacal Q. Whether it be Simony to give money for the Sacrament upon a Death-Bed Whether it be Simony in the Ordinaries or their Officials to take money for Letters of Ordination under Seal Whether it be Simony in Ecclesiasticks to take money for Sermons or Theological Doctrines Whether it be Simony to resign a Benefice reserving a Pension out of it Whether it be Simony to resign or bestow a benefices upon Trust or Confidence With diverse other such Questions in the Canon Law relating to this Subject the Solutions whereof are not of any moment to us who are out of the Pope's Diocess CHAP. XL. Of Blasphemy and Heresie 1. What Blasphemy is and whence so called 2. The several punishments inflicted on Blasphemers 3. How may ways Blasphemy may be 4. What Heresie is a Conjectural derivation of that word Heresie it is Threefold 5. What shall he accounted Heresie what the Lollards of old were and why so called 6. In whom the Jurisdiction of Heresie properly resides 7. A Heretick convicted and so persisting whether according to Law combustable The reason of that severe Law Heresie is Lepra animae 8. An Alphabetical black Catalogue of Hereticks their Errors Heresies and Blasphemies and the times wherein they pester'd the World 9. A Catalogue of Jewish Hereticks but not in any Alphabetical manner as the former 1. BLASPHEMIA 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quod laedat famam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is as it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to hurt anothers same or reputation Suidas interpreteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one who injureth God with contumelious words which is when men detract from God the honour due unto him or attribute any evil to him Blasphemare est tacite vel expresse verbo vel scripto contra deum aliquid contumeliosum dicere Navar. cap. 12. nu 81. Blasphemia est injuriosa in deum locutio vel contumelia in deum verbo irrogata Less lib. 2. de Blasph This is cognizable in the Ecclesiastical Jurisdiction and by the 109. Canon of the Ecclesiastical Constitutions of the Church of England is among other notorious Crimes to be certified into Ecclesiastical Courts by way of presentment in order to punishment according to Law 2. This Crime of Blasphemy was so odious to the Emperor Justinian that he ordained that the Blasphemer should undergo ultimum supplicium be punished by death for he made it capital Auth. ut non Luxur Coll. 7. By the Ecclesiastical Laws of Keneth King of Scots An. 840. It is provided that he that Blasphemeth shall have his Tongue cut out Blasphemy is speaking Treason against the Heavenly Majesty the belching out of exercrable words against God whereby the Deity is reproached Baldus says that Blasphemy is a kind of Heresie Bald. in L. Qui accusationem C. Qui Accus non posse for which a Lay-man is Anathematized by the Church of God and a Clerk deposed from all Ecclesiastical Orders Can. si quis per capillum 22. q. 1. The Canon Law seems not severe enough in the punishment of this Crime probably for that they of the Roman Church do hold that there is a Blasphemy against Saints and Blasphemia Dei vel sanctorum hath but one and the same punishment with them and that is a solemn and publick penance if the Blasphemy were publickly committed Extra de Maledict c. statuimus And that the World may know how they abominate this sin of Blasphemy they put the Question and demand whether any Priest inferiour to a Bishop can absolve a man from this sin for answer they distinguish and say that if the Blasphemy be publick and notorious it cannot be absolved but by a Bishop but if it were only private and occult non in platea nec in camera multis audientibus then every Priest may absolve it Ant. de pae re si Episcopus lib. 6. Steph. de Gaeta Repet in c. ad Limina 30. q. 1. nu 139. Aquinas reckons it among the Mortal sins 3. Lindwood in his Provincials says that that is Blasphemy quae dicitur irreligiosa reprehensio detractio vel vituperatio but says he to speak properly and strictly Blasphemare est Deo injuriam irrogare which may be done three several ways 1 Aliquid attribuendo quod deo non convenit 2. Ab ea removendo quod deo convenit 3. Creaturae attribuendo illud quod est proprium deo Lindw de Offic. Archipr c. 1. verb. Blasphemia In the Primitive times this sin was punished by a delivering the Offender over unto Satan which was an Ecclesiastical censure by the Greater Excommunication whereby the Offender became unto others as an Heathen and a Publican Mat. 18. 17. and whereby he is dissiranchised of all the Priviledges of the Church 4. Touching Heresie there are various conceptions as to the derivation of that word some are of opinion that the word comes from Error and rectus and that from thence comes Haereticus that is Errans à Recto sive Rectitudine Fidei Catholicae l. 2. in sin C. de Haeretic Others will have the word Heresis to be from heriscor that is divido and thence Heresie to be Divisio ab unitate Fidei Azo Sum. C. eod tit Others will have it to be from haereo Error thence Haeresis quasi adhaesio Erroris and Haereticus quasi adhaerens Errori for Error of it self doth not make an Heretick but adhering to an Error doth Lindw de Haeret. c. 1. And others there are who do conceive that the word Haeresis dicitur ab Electione because an Heretick doth chuse to himself that Opinion which he thinks is best for himself And he that inclines to this Opinion seems to be least in an Error for Haeresis is from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Optio vel electio secta ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eligo Heresie is an Opinion repugnant to the orthodox Doctrine of the Christian Faith obstinately maintain'd and persisted in by such as profess the Name of Christ that Heresie which is commonly called Haeresis univorsa or Heresie in sensu largo is threefold and doth consist either in a mans heart or in his mouth or in his works Under the first of these are comprized all such as are Christians only by Name but not so in truth and in deed under the second are comprehended all vain Swearers Covenant-breakers and indevout approachers to God in his Worship under the third are contained all Hypocrites whose counterfeit devotion without any sincerity in the heart consists only in the simulation of an external work all these are by Lindwood understood in a large sense as Hereticks Lindw de Offic. Archipr c. 1 glos in ver Haeresis But these are not the Hereticks here meant or intended nor indeed are they Hereticks in any proper sense whereby we commonly understand such as Hereticks who maintain and persist in any Opinion contrary to the True Orthodox
Men which belong to the Blessed Hill They abstained from things that have life and some of them from Marriage One Dosithens a Samaritan is supposed to be the first Founder of the Samaritam Heresies and the first among them that rejected the Prophets as not having spoken by the Holy Ghost There were four sects of Samaritan Hereticks according to Epiphanius each of them holding their different Heresies in some respects and having in other respects certain Heretical Tenents common to them all By all which premisses it is most evident that the Prince of Darkness and the Father of Lyes hath had in all Ages Nations and Churches his Emissaries to infect them with Heretical and Blasphemous Erros but the Gates or Power of Hell to this day never could nor to Eternity ever shall prevail against the Truth CHAP. XLI Of Councils Synods and Convocations 1. The several kinds of Councils and Synods 2. What Canons in force in the Realm of Primo Ed. 6. Also how the Canons entituled Reformatio Legum Ecclesiasticarum became abortive 3. That part of the Canon Law is part of the Law of England 4. Convocation in England what how and by what Authority and for what ends conven'd also of what Members it doth consist with the Authority thereof 5. Convocations and Provincial Synods of very great Antiquity in England have been ever call'd by the Kings Writ their Priviledges 6. The Canons and Ecclesiastical Constitutions may not be repugnant either to the Kings Prerogative or to the Laws Statutes or Customes of this Realm 7. Lindwood's Method of Provincial Synods in this Realm and under what Archbishops 8. The four several kinds of Councils and Synods in general 9. A compendious Catalogue thereof when and where held by and under whom conven'd with the principal matters therein treated and determined 1. OF Councils or Synods there are four kinds viz. 1 Oecumenical as being called out divers Nations 2 National as out of divers Provinces both these kinds of Councils or Synods were ever assembled by Imperial Regal or Papal Authority 3 Provincial as out of divers Dioceses conven'd by Metropolitans or Patriarchs 4 Diocesan as out of one Diocese onely assembled by the Bishop thereof The frequent celebration of Synods the Council of Basil calls praecipuam agri Domini culturam Touching Synods vid. Duar. de Sacr. Eccl. minist et benefic 2. In the Reign of King Hen. 8. the Bishops and Clergy in the Convocation an 1532. oblig'd themselves neither to make nor execute any Canons or Constitutions Ecclesiastical but as they were thereto enabled by the Kings Authority it was by them desired by him assented unto and confirm'd in Parliament that all such Canons and Constitutions Synodal and Provincial as were before in use and neither repugnant to the word of God the Kings prerogative Royal or the known Laws of the Land should remain in force until a Review thereof were made by 30 persons of the Kings appointment which Review not having been made from that time to the first year of King Edward 6. All the said old Canons and Constitutions so restrained and qualified did then still remain in force as before they were For this consult the Act of Parliament of 25 H. 8. c. 1. And in the Third year of the said King Edward 6. there passed an Act in Parliament For enabling the King to nominate Eight Bishops and as many Temporal Lords and Sixteen Members of the Lower House of Parliament for Reviewing of such Canons and Constitutions as remained in force by virtue of the Statute made in the 25th year of King H. 8. and fitting them for the use of the Church in all times succeeding According to which Act the King directed a Commission to Archbishop Cranmer and the rest of the Persons whom he thought fit to nominate to that employment and afterwards appointed a Sub-Committee of Eight persons to prepare the Work and make it ready for the rest that it might be dispatch'd with the more expedition which said Eight persons were the Archbishop of Canterbury Dr. Goodrick Bishop of Ely Dr. Cox the Kings Almoner Peter Martyr Dr. in Divinity William May and Rowland Taylor Drs. of Laws John Lucas and Richard Goodrick Esquires by whom the Work was undertaken and digested fashioned according to the method of the Roman Decretals and called by the name of Reformatio Legum Ecclesiasticarum c But not being Commissionated hereunto till the Eleventh of November in the year 1551. they either wanted time to Communicate to the chief Commissioners by whom it was to be presented to the King or found the King encumber'd with more weighty Affairs than to attend the perusal thereof And so the King dying before he had given life unto it by his Royal Assent and Signiture the design miscarried and never since thought fit to be resumed in the following Times by any of those who have had the Government of the Church or were concerned in the honour and safety thereof 3. It is asserted by good Authority That if the Canon Law be made part of the Law of this Realm then it is as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land Likewise in the Case of Shute against Higden touching Voidance of a Former Benefice by being Admitted and Instituted into a Second and that by the Ancient Canon Law received in this Kingdom This says the same Authority is the Law of the Kingdom in such cases And in the Case of Hill against Good the same Author doth further assert That a Lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else is so for what is Law doth not suscipere magis minus Which Premisses though they may seem yet are not inconsistent with what Sr. Ed. Coke says viz. That the Laws of England are not derived from any Forein Law either Canon Civil or other but a special Law appropriated to this Kingdom That it may be said of its Law as of its situation Et penitus toto divisos Orbo Britannos 4 Convocation is the highest Ecclesiastical Court or Assembly called and convened in time of Parliament by the Kings Writ directed to the Archbishops consisting of all the Clergy of both Provinces either Personally or Representatively present in the Upper House of the Archbishops and Bishops and the Lower House of the other Clergy or their Proctors chosen and appointed to appear for Cathedral or other Collegiate Churches and for the Common Clergy of every Diocess with a Prolocutor of each House and President of the Convocation for the Province of Canterbury to consult of matters Ecclesiastical and thereon to Treat Agree Consent and Conclude as occasion requires on certain Constitutions and Canons Ecclesiastical to be ratified and confirmed by the Royal Assent They were Anciently called
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
of Pope Julius the Third An. 1551. which had only Three Sessions by reason of Wars happening in Germany At this Second Meeting the French King protested against this Council The Third Meeting whereof was Nine years after the Second it being appointed by Pope Pius the Fourth there having been in this interval since the Second Meeting when Julius the Third was Pope two other Popes viz. Marcellus and Paulus the Fourth At this Third and last Meeting there were Nine Sessions the Last whereof began the Third of December An. 1563. The chief Points treated of at this Council were concerning the Scriptures Original Sin Justification the Sacraments in General Baptism the removing of the Council the Eucharist Repentance Extream Unction Communion of Lay-persons under one kind the Sacrifice of Masse the Sacrament of Order Matrimony Purgatory Worshipping of Reliques Invocation of Saints Worshipping of Images Indulgencies the choice of Meats Fastings and Festivals The History of this Council of Trent is extant Of National Councils there have been many more than what are before mentioned as here in Britain and in Italy Spain France Germany the Eastern and African In Italy it is said that there are to be found 115 such Synods as it were National which go under the Name of Roman Councils But such as are of the most Remark in each of these Countreys and the principal things they determined you may find a touch of and no more in the Learned Bishop Prideaux his Synopsis of Councils in the Eighth Chapter Edit 5. Oxon. 1672. CHAP. XLII Of Excommunication 1. What Excommunication is It is Twofold 2. By what Appellations the Greater and Lesser Excommunication are known and distinguished their respective derivations and significations and the nature of each 3. Ecclesiastical Censures in the general may be Threefold 4. What the Law intends by Excommunication ipso facto 5. What the Excommunicate is not debarr'd of by Law 6. Legal Requisites to the due pronunciation of the Sentence of Excommunication 7. What course the Law takes with an Excommunicate after Forty days so perisisting obstinate 8. The several Causes of Excommunication ipso facto enumerated by Lindwood 9. The Causes of Excommunication ipso facto by the Canons now in force in the Church of England 10. The several Writs at Law touching persons Excommunicate and the Causes to be contained in a Significavit whereon the Excommunication proceeded 11. What the Writs de Excommunicato Deliberando also de Excommunicato Recipiendo do signifie in Law 12. A sufficient and lawful Addition to be in the Significavit and in the Excom Capiend Vid. Sect. 10. 13. Several Statutes touching Persons Excommunicated 14. Excommunication for striking in the Church 15. Whether a Bishop hath Jurisdiction or may Cite a man out of his Diocese 16. What are the Requisites of a Certificate of Excommunication for stay of Actions and how it ought to be qualified 17. A Significavit of Excommunication for not Answering Articles not shewing what they were not good 18. By whom an Excommunication may be Certified and how 19. In what case the Significavit of an Excommunication ought to express one of the Causes mentioned in the Statute 20. Whether a General Pardon doth discharge an Excommunication for Contempt precedent to the Pardon or shall discharge the Costs of Court thereon 21. A man taken upon an Excom Cap. and discharged because the Significavit did not express the party to be Commorant within the Bishops Diocess at the time of the Excommunicat 22. Where a man is twice Excommunicated whether an Absolution for the latter shall purge the first Excommunication 23. Whether a Prohibition lies to the Ecclesiastical Court upon Costs there given not in an Action at the Suit of the party but upon an Information there exhibited 24. What Remedy in Law for a party wrong fully Excommunicated and so remaining Forty daies without suing a Prohibition 25. Whether a Person taken by a Capias de Excom Capiend be Bailable or not And whether the Bishop may take Bond of the Excommunicate to perform Submission for their Absolution 1. EXcommunication commonly termed in the Common Law in the Law-French thereof Excommengement is a Censure of the Church pronounced and inflicted by the Canon or some Ecclesiastical Judge lawfully Constituted whereby the party against whom it is so pronounced is pro tempore deprived of the lawful participation and Communion of the Sacraments And is also sometimes as to Offenders a deprivation of their Communion and sequestration of their persons from the Converse and Society of the Faithful And therefore it is distinguish'd into the Greater and Lesser Excommunication the Greater comprizing as well the latter as the former part of the abovesaid definition or description the Lesser comprizing only the former part thereof de Except c. a nobis Lindw de Cohab. Cler. gl in verb. Sacramenta Excommunicatio quasi extra Communionem For Excommunication is Extra Communionem Ecclesiae separatio vel Censura Ecclesiastica excludens aliquem à Communione Fidelium This Ecclesiastical Censure when it is Just is not by any means to be despised or opposed for Christ himself is the Author thereof Anciently among the Hebrews such persons as were Excommunicated were termed Aposynagogi as being quasi Synagoga exacti and to be shun'd or avoided of all men until they repented That of our Saviour in Matth. 18. 17. Let him be unto thee as an Heathen man and a Publican seems to referr to some such Excommunication the power whereof by way of Judicature being then in the Jewish Sanhedrim or Colledge of Elders 2. This Ecclesiastical Censure when limited or restrained only to the Lesser Excommunication the Theologists will have to be understood by the Greek word Anathema Accursed or Separated and when it extends to the Greater Excommunication then to be understood by the Syriack word Maran-atha or Our Lord cometh Anathema Maran atha Anathema Let him be Accursed quasi Devoted to the Devil and separated from Christ and his Churches Communion Maran-atha Some take this for a Syriack word Others not so well satisfied with that Judgment will have it to be a Chaldee word yet used in the Hebrew and familiarly known among the Greeks Maran-atha viz. Our Lord cometh for Maran is our Lord and atha cometh or rather three words more properly viz. Mara-na-atha Our Lord cometh Being a word used in the greatest Excommunication among the Christians intimating or implying That they summoned the person Excommunicated before the dreadful Tribunal at the last coming of the Son of God or that such as were under this Censure of the Church were given up and reserved to the Lords coming to be judged by him and mean while without Repentance and Absolution are to expect nothing but the Terrible coming of Christ to take Vengeance of them To which that Prophesie of Enoch seems to allude Behold the Lord cometh with Ten thousands of his Saints to execute Judgment upon all
c. The Venerable Mr. Bede doth suppose that this answers to the heaviest Curse amongst the Jews for they had 1 their Niddui 2 their Cherem that is Anathema This their Cherem was either the simple and single Anathema or their Shematha or Maranatha For this dreadful kind of Excommunication here called Maran-atha the Jews called Sammatha Sem signifying the name of God Tetragrammaton or Jehovah and atha he cometh though others will have that Sammatha to be derived from Sam that is their and Mitha that is death their death But not to insist further on the words whereby this Ecclesiastical Censure of Excommunication is signified for that is but as a Flash of Lightning in respect of the Thunder of the Curse it self 3. Although every Excommunication is an Ecclesiastical Censure yet every Ecclesiastical Censure is not an Excommunication for an Ecclesiastical Censure may be as well per Suspensionem and per Interdictum as per Excommunicationem Extr. de verb. sig c. quaerenti Hanc autem Censuram fulminare possunt Eccles Praelati quibus ab homine Lege vel Canone aut Consuetudine tribuitur Jurisdictio Ordinaria De Offic. Ord. c. cum ab Ecclesiar 4. It hath been sometimes question'd what the Law intends by Excommunication ipso facto that Clause imports ac si diceret ipso jure that is nullo hominis ministerio interveniente Not. per Arch. de Rescrip c. 1. verb. ipso jure li. 6. Lindw de Offic. Archid. gloss in c. Vt Archidiacont verb. ipso facto And regularly when a person is Excommunicated it is not intended only of the Lesser Excommunication Nam Excommunicatio simpliciter prolata intelligitur de Majori Extr. de Sen. Excom c. Si quem 11. q. 3. debent Lindw glos verb. Excommuni c. Exhorrenda De Procuratorib 5. Notwithstanding the Law doth not exclude the Excommunicate from such lawful Acts as sine quibus vix potest consistere vita hominis Glos ibid. in verb. Actu Legitimo And although depending the Excommunication he is disqualified to commence Actions at Law as a Plaintiff yet he may ad sui defensionem appellare caetera in Judicio facere exercere quae ad ejus defensionem pertinent Gloss Lindw ibid. And according to Lindwood he may Matrimonium Contrahere etiam Testari Lindw ibid. 6. This Sentence of Excommunication ought not to be pronounced against Offenders otherwise than rite cum debita solennitate that is juris ordine servato and therefore the Canon requires That there issue a Summons or previous Citation to the Delinquent before Sentence of Excommunication be pronounced against him Primo vocetur Delinquens propositurus Causam rationabilem quare pronunciari non debeat incidisse in dictam Sententiam Ad effectum namque quod aliquis denuncietur Excommunicatus à Canone vel Constitutione requiritur Citatio praevia C. Si per vim vel alio modo l. fin de Man Obed. c. inter quatuor de Cens c. fi in Oec cum glos So likewise the Canon is That Nemo Excommunicationem promulget ubi Excessus non est manifestus nisi Monitione Canonica praecedente Lindw de Sentenia Excom c. Vt Archidiaconi unless the same party for the same cause be Excommunicated again in which case there needs not any previous Citation or Monition as before Nam Excommunicatio quae sit saepius ex eadem Causa potest fieri nulla Citatione nullaque Monitione praevia Ibid. c. praeteria ver Excommunicentnr For in truth this Excommunication in such case is not any new Sentence of Excommunication but only a Renâ—vation of the former with an Aggravation for which reason it is that such Excommunication as is again pronounced against the same person for the same cause repeated by him may be nulla Citatione nullave Monitione praecedente Ibid. Extr. de Judaeis c. ita quorundam Whence it doth appear That a person Excommunicated may be Excommunicated again either for the same or some other new Cause Ibid. 3. q. 4. engeltrudam And although the First Excommunication is in effect sufficient for the ejecting such an one out of the Church so that he who is once cast out of the Church amplius excludi non potest yet by this Second Denunciation there follows another effect and that is That thereby he may be reputed and held by all the Faithful in all places as a person utterly shut out of the Church donec per suum Judicem secundum formam Ecclesiae fuerit absolutus Gloss ibid. verb. denuncientur 7. Also when a person Excommunicated hath Forty daies persisted in his obstinacy contrary to Law under that Sentence the Bishop may then make his humble address to the King for the apprehending and imprisoning such obstinate Excommunicates but this may not be done by any inferiour to a Bishop Nam ad rogatum praelatorum inferiorum Rex non consuevit scribere pro Captione Excommunicatorum Lindw de Sententia Excom c. praeteria glos in verb. Praelatorum And therefore if a man be Excommunicated by any inferiour to a Bishop as by a Dean Archdeacon or the like yet the Supplication for his Majesties Writ ought to be by the Bishop of that Diocess and in his Name Nam Inferiores Episcopis non possunt invocare Brachium Seculare Ibid. Lindw de Cohab. Cler. Mul. c. 1. § si nec ver Brachium Seculare And in case the Bishop shall herein refuse to do what the Law requires he may be constrained thereto by the Archbishop Ibid. de jur patron c. nullus Nor can the Excommunicated person who after Forty daies persisting in his obstinacy is upon the Kings Writ on the Significavit pro Corp. Excom Capiendo apprehended or like to be apprehended evade Imprisonment or defend himself by an Appeal or by virtue thereof or by shewing the same to the Temporal Judge that so under pretence of a dependency of an Appeal he may escape Imprisonment because such Appeal as to the validity or invalidity thereof or teneat vel non teneat legitima vel non legitima falls under the scrutiny and examination not of the Temporal but Ecclesiastical Judge and therefore si talis indagâ— sive discussio pertains not to the Secular Judge it were frivolous to alledge that before one not qualified to examine the merits of the Appeal Dict. c. praeteria glos in verb. Dari debet And as persons Excommunicated cannot legally have any shelter or subterfuge under pretence of such Appeals so neither do the Canons suffer the Contemners of this Sentence of Excommunication to go unpunished under which number regularly and generally are computed all such as animo indurato do persevere under Excommunication by the space of Forty daies according to the Custome of the Realm of England Lindw de Sententia Excom c. ut Archidiaconi glos in verb. Contemnentes But more particularly the Canons hold them Contemners of this Excommunication who add Culpam culpae or go
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
Causes to his own Cognizance Nolente Ordinario p. 19. Sect. 10. Whether he may Cite a man out of his own proper Diocess p. 100 c. Sect. 3. The great Antiquity Precedency Priviledges Style and Precincts of the Archbishop of Canterbury p. 13. Sect. 1. He is the first Peer in England next to the Blood Royal. ibid. Anciently he had Primacy as well over all Ireland as England p. 20. Sect. 13. He was anciently styled Patriarcha orbis Britannici Pontifex ibid. He had some special marks of Royalty p. 21. Sect. 13. Several Priviledges peculiar to him ibid. Whether he had concurrent Jurisdiction in Inferiour Diocesses within his Province p. 18. Sect. 9. That See kept Four years by King William Rufus without an Archbishop p. 24. Sect. 3. In what respects the Archbishop of Canterbury hath some power over the Archbishop of York p. 18. Sect. 9. The Original of the Metropolitan See of York p. 14. Sect. 2. The Antiquity Precedency Style and Precincts of the Archbishop of York ibid. Anciently an Archbishop of London p. 17. Sect. 7. Archâ—s-Court the higâ—â— Consistory p. 83. Sect. 6. Why so called p. 100. Sect. 3. The great Antiquity Jurisdiction and decent order 〈…〉 5. 〈…〉 and what he is p. 60. Sect. 1. How he 〈…〉 Office and Jurisdiction p. 61. Sect. 1. The 〈◊〉 kinds of Archdeacons and how many in England p. 61. Sect. 2. How they are distinguished by the Canon Law p. 65. Sect. 10. Whence their Pâ—rer is derived p. 62. Sect. 3. The Canon touching 〈…〉 to their Visitations p. 64. Sect. 9. Whether they have Power of Visitation Jure communi p. 63 67. Sect. 7. What Remedy in case an Archdeacon dâ—th refuse to swear the Church-Wardens elect p. 164. Sect. 9. Whether an Archdeaconry be understood as a Benefice with Cure p. 62. Sect. 5. and p. 200. Sect. 13 Arch-Flamins what and how many anciently in England and where p. 16. Sect. 4. They were succeeded by as many Archbishopricks ibid. Arch-Presbyter what p. 56. Sect. 7 Arms or Coat-Armour on Monuments or Church-windows not to be defaced or demolished p. 138 139. Sect. 5 Arrests whether they may de executed on Christmas-Day p. 115. Sect. 12. Whether executable on Clergy-men in time of Divine service p. 141. Sect. 8. Articles 39 of Religion what kind of subscription thereunto required p. 163. Sect. 8. Articles of Religion under King Ed. 6. p. 8. Sect. 14. The like under Q. Eliz. ibid. Articles of Enquiry on a Jure Patronatus p. 180. Sect. 2. Articles before the high Commissioners at York against the Vicar of Hallifax p. 189. Sect. 9. Articuli Cleri and Circumspecte agatis what p. 639. Assault on a Clerk whether cognizable before the Ordinary p. 115. Sect. 12. Assaults in the Church or Church-yard are not to be retaliated p. 139. Sect. 5 Assent to the Articles of Religion what good or not within the intent of the Statute p. 163. Sect. 8. Assent of the Ordinary requisite to the Foundation of a Church p. 207. Sect. 5. Assent of the Patron requisite to the Vnion and Appropriation of Churches p. 109. Sect. 8. Assise de utrum what and why so called p. 644. Sect. 2. Atturney at Law he may not be elected Church-warden p. 164. Sect. 9. Audience or Court of Audience what it was where kept and what matters it took Cognizance of p. 106. Sect. 7. Aumone or Frank Almoigne a description thereof it 's use and end p. 338. Sect. 4. AVoidance what 283. Sect. 1. Twofold ibid. What difference between Avoidance and Next Avoidance p. 284. Sect. 2. How many ways it may be p. ibid. Sect. 3. In what Court cognizable p. 122. Sect. 21. The difference between the Common and Canon Law in reference to Avoidances p. 286. Sect. 8. The grant of the Next Avoidance during an Avoidance is void p. 219. Sect. 24. Whether the grant of a Next Avoidance good without Deed p. 255. Sect. 4. Avowe or Advowe what p. 181. Sect. 5. Austin whether the first that preached the Gospel in England p. 13. Sect. 1. Whether the first Archbishop of Canterbury p. ibid. Where buried p. 16. Sect. 4. Award or Arbitrement pleaded in Barr of Tithes in the Ecclesiastical Court and refused no ground for a Prohibition p. 122 123. Sect. 25. B. BAIL whether it may be taken for one apprehended by a Capias De Excom capiend p. 651. Sect. 25. Banns what whence derived how published by whom dispensed with and the legal Requisites in order to such Dispensations p. 465. Bark of Trees what not Tithable p. 387. Barren Land the Law touching the Tithes thereof p. 387. c. Bastard whence that word and who properly such p. 478. Sect. 1. and p. 486. Sect. 16 18. How differenced from Mulier at Common Law p. 478. Sect. 2. How distinguish'd at the Civil Law p. 480. Sect. 5. How that Law computes the time of a Womans going with Child p. 482. Sect. 7. How computed at the Common Law p. 482 Sect. 9. and p. 484. Sect. 12. Bastardy how distinguish'd at Common Law p. 478 479. Sect. 3. It is Triable by the Certificate of the Bishop p. 122. Sect. 21. How prosecuted in Courts of Justice p. 480. Sect. 6. and p. 484. 485. Sect. 13. How punished p. 438. Sect. 10. and p. 485. Sect. 14. Difference between the Common Civil and Ecclesiastical Law in reference to Bastardy p. 487. Sect. 19. Baud whether and where Actionable for calling one so p. 519 520. Sect. 11. and p. 520. Sect. 13. and p. 523. 20. Beauford Henry Great Vncle to King H. 6. and Bishop of Winchester made Cardinal how he thereby fell into a Premunire p. 110. Sect. 8. Becket Archbishop of Canterbury his contention with King Henry 2. p. 100. Sect. 2. Beech-Trees how and in what Case Tithable or not p. 389. Bees in what kind they pay Tithes p. ibid. Benefice Ecclesiastical the true definition thereof p. 200. 12. The reasons of that definition p. ibid. Whether Ecclesiastical Dignities fall under the notion of Benefices p. 200. Sect. 13. Of what a Benefice consists p. 200 201. Sect. 14. No Contract to be made for it nor is it vendible p. 201. Sect. 15. Six Signs or Requisites of an Ecclesiastical Benefice p. ibid. The common distinction thereof p. 201. Sect. 16. Beneficio primo Ecclesiastico habendo what that Writ imports p. 647. Sect. 9. Birch-Trees whether Tithable after Twenty years growth p. 390. Bishop the derivation of that word and why so called p. 22. Sect. 1. Anciently he was the universal Incumbent of his Diocess p. 13. Sect. 1. Why called Ordinary p. ibid. Sect. 2. What things requisite to his Creation p. 25. Sect. 4. The form and manner of making Bishops ibid. and p. 26. and p. 50. Sect. 8. His interest and Authority in his several capacities p. 29 30. Sect. 9. Whether he may grant Letters of Institution out of his own proper Diocess and under any Seal other than his own Seal of Office
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
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
Rer. Divis § Nullius And it is supposed That such as are Impropriators are so denominated for that now and hereby they are as Owners of a Feesimple by reason of the perpetuity of their Title whence called Proprietarii whereas the Parsons of any Ecclesiastical Benefice are properly regularly and ordinarily accounted but Vsusructuarii nor were they any other Originally and not Domini as having any Right of Fee-simple in them It is further asserted by Dr. Cowell That before the Reign of R. 2. it seemed to be lawful to appropriate all the Provenues of an Ecclesiastical Benefice to an Abby or Priory provided they found one to serve the Cure but then withal that King though he did not suppress such Spiritual Monopolies yet made a Law whereby he Ordained That in every License of Appropriations to be thenceforth granted in Chancery it should expresly be appointed and contained That the Diocesan of the Place should take care to provide an Annual competency or convenient sum of Money to be yearly issuing and paid out of the Parsonage-Fruits of that Parish towards the maintenance of the Poor thereof and for a sufficient subsistance and endowment of the Vicar By the Statutes of 15 R. 2. pl. 6. and 4 H. 4. cap. 12. it is Provided That where a Church is Appropriated a Vicar ought to be Endowed If the Church be full the consent of the Diocesan Patron and Incumbent are necessary to an Appropriation after the Kings License first had and obtained in Chancery But if the Church be void then the Diocesan and the Patron upon such License from the King may conclude it And as to the Dissolution of an Appropriation the Patron 's Presentation of his Clerk to the Ordinary with his Institution and Induction thereupon is sufficient to effect it and puts the Benefice instatu quo 4. Although Appropriations at their Original were tolerated only to persons Ecclesiastical and that in order to their better Hospitality yet now they are become as Lay-Inheritances and adapted as well to persons Secular as Ecclesiastical and to Bodies Corporate as well as to persons Private or Individual who by virtue of their Right and Title to a Parsonage or Spiritual Benefice may take the Profits thereof to their own proper use maintaining only a Vicar upon the place to serve the Cure Anciently and Originally these Appropriations came from the Pope afterwards tolerated by Kings and with the consent and approbation of the Ordinary So that now Appropriators and Appropriations are no other than Lay-Parsons Lay-Parsonages which Lay-Parsons as they are the Proprietaries the Common Law allows them to be called the Incumbents and him that hath the Church by Appropriation Parson Imparsonee and although they are said to be perpetually Appropriate yet may be Dissolved and become Propriate again as in case a Corporation to which it belonged should be Dissolved or in case the Advowson should be Recovered by a Title more Legal and more Ancient than that of the Appropriation which as it was originally tollerated only to Spiritual persons so never without the Ordinary's Consent and approbation consonant whereunto are the Seventh and Eighth Canons of the Council held at Gangra where a Curse is pronounced upon all such as shall presume to give or receive the Church-Fruits otherwise than by the Bishops Dispensation or of such other as by the Bishop shall be appointed thereunto Nor was it ever in the Primitive times held lawful for meer Lay-men and Secular persons to have any thing to do with the Church Revenues It was an Observation of Stephen Bishop of Rome in the second Century in his second Epistle Laicis quoque quamvis Religiosi sint nulla tamen de Ecclesiasticis Facultatibus disponendi legitur unquam tributa facultas which long after was also repeated in the Council of Lateran under Innocent the Third c. 44. And in the filling of such vacant Appropriations as were granted to Religious Houses the Bishop was impower'd by Law to oblige the Proprietaries to set out for the Vicar Incumbent such a convenient Portion as the Bishop in his Judgment should be pleased to allot Vid. Alex. 3. ad Epise Wigorn. De Praeb Dig. c. de Monach. 5. Whereas it hath been formerly hinted § 5. that Appropriations have heretofore been granted to Nunneries Hobard Chief Justice is express against it That a Benefice with Cure could not be Approprietated to a Nunnery though the Pope made many de facto Citing Dyer in Grindon's Case saying That it was a thing Abominable both against the Law of God and the Law of this Realm for Beneficium non datur nisi propter Officium Nor is it a sufficient Answer to say the Cure might be served by a Curate for them for the question is not How they might make a Curate but how themselves were capable for it must radically vest in the first Grantee before it can go in title of Procuration or Deputation to any other For the proper and operative words which make an Appropriation are such as must make the Patron and his Successors perpetual Parsons yet if a meer Lay-man or one wholly illiterate be Presented Instituted and Inducted this is not a meer Nullity but he is a Parson de facto as having all the Ceremonies to make him such and his Insufficiency must receive Examination yet no Dispensation can make him a lawful Parson not subject to Deprivation because it is Malum in se but in the other Case the Incapacity appears in it self Nor are Appropriations regularly grantable over neither can they endure longer than the Bodies whereunto they were first Appropriate because it carries not only the Glebe and Tithes which may be granted away but it doth also give them the Spiritual Function and doth make the Parsons of the Church and doth supply so Hobart Chief Justice Institution and Induction which being the highest parts of Trusts cannot be estranged And therefore the Instrument of Appropriation runs in these words viz. That they and their Successors not their Assigns shall be Parsons or by Periphrasis hold the Church in proper use Likewise when an Appropriation was made by the King as the Supream Ordinary or by a Bishop as the Ordinary under him the Instrument thereof did run in these or the like words viz. if by the King Authoritate nostra Regali if by the Bishop with the King's Assent then it was Authoritate nostra Ordinaria Ecclesiam Parochialem de B. tali c. Annectimus Appropriamus unimus per Praesentes 6. Appropriations of Ancient time are not now in these daies to be questioned as to the Original of them if they have ever been so reputed and taken for Impropriations To which purpose it was Resolved in the time of Queen Elizabeth in Chancery by Egerton Lord Chancellor of England being assisted with the Principal Judges That although an Advowson doth not pass by the Grant of the King
in strictness of Law by the words cum pertinentiis yet it shall be intended in respect of the Ancient and continued possession that there was a lawful Grant of the King to H. B. c. and all shall be presumed to be done which might make the Ancient Appropriation good And the Reason thereof there given is for that if the Appropriation had been drawn in question in the Life-time of any of the Parties to it they might have shewed the truth of the matter But after so many Successions of Ages in which the Church was esteemed to be rightfully Appropriated the Appropriation shall not now be drawn in question For the same reason a Procedendo was refused to be granted in Chancery in the Case of the Lord St. John of Bletso and the Dean and Chapter of Gloucester the Court then giving for Reason because the Defendant and those from whom he claimed time out of mind had had the possession of a Parsonage as Impropriate saving for some short time and because it shall be a dangerous President for Owners of Impropriations to maintain the Appropriations to be Perfect in all points and circumstances requisite to an Absolute Appropriation the Appropriations being made of Ancient time The like Resolution was given by the Court in Hunston and Cockett's Case viz. That whether an Appropriation be good or not cannot now be called into question but shall be intended to be good and to all requisite Circumstances 7. An Appropriation cannot in any case be made by the Patron himself only yet where the King is Patron it may be made by him Sole And although upon every Appropriation there ought to be an Endowment of a Vicar yet a Vicarage it self Endowed may as hath been held by the whole Court be Appropriated but not to the Parson and as in the Book 21 H. 6. is such a Vicarage as may afterwards be dissolved And if a Lease be made of a Parsonage Impropriate by one who hath not any thing therein during the life of the Incumbent it will be void nor can an Appropriation be made to a Church which is Full of an Incumbent but by Special words It hath also been held That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope had not any power to make any Ordinance against that Statute by which he hath not any Right to meddle with Advowsons Benefices c. and that by his Bulls he cannot dispence with the Law though they tend in ordine ad Spiritualia 8. Touching Appropriations there were Three considerable Points in Law Resolved by the Justices in Grendon's Case 1 That none is capable of Appropriation but a Body Corporate or Politick Spiritual which hath a Succession For that the effect of an Appropriation as to the first Institution thereof was to make the Body Politick perpetual Incumbent and to have the Rectory and that he hath the Cure of all the Souls of the Parishioners and therefore he must be a Spiritual person 2 That the King Ordinary and Patron ought to be assenting unto every Appropriation and that the Authority which the Pope had usurped in this Realm was by Parliament An. 25 H. 8 acknowledged to be in the King and the King being Supream Ordinary might of his own Authority and Jurisdiction make an Appropriation without the Assent of the Bishop 3 That an Appropriation may be made by Apt words when the Church is Full as to say That the Parson who is a Spiritual person after that the Church shall be void shall be Parson and may retain the Glebe and the Fruits of the Church to his proper use and that the same shall be a good Appropriation when the Church shall be void by death or otherwise 9. It is brought by way of Report to us That it was the Opinion of the Master of the Rolls in the great Case of Consultation which was argued in the Exchequer Chamber the 18 H. 6. 21. a. That an Advowson could not be Appropriate without a Succession although that the Incumbent purchased the Advowson by License to hold to his Own use Where it was further said That if a Prior were seized of an Advowson to him and his Heirs and he purchase License of Appropriation and that he and his Successors might hold the Advowson to their own use yet the Advowson shall descend to his Heirs But in such case if he would have the Appropriation to be good it were best to alien the Advowson and after to re-purchase it to him and his Successors and then the Appropriation will be good All Appropriations have been usually to Corporations or persons Spiritual and not to Bodies Politick consisting of meer Lay-men or Lay-Corporations And in Alden and Tothil's Case it was in question Whether the King since the Statute of 25 H. 8. might by his Letters Patents Appropriate a Church Parochial which was before Presentative unto a Lay-Corporation all the Members of the Corporation being meer Lay-men which Case was not then Resolved 10. As a Church Parochial might be Appropriated so a Church which is Appropriated to a Spiritual Corporation may become disappropriate if the Corporation be-dissolved Also if the Advowson of a Church were by License granted to a Prior and his Successors and afterwards the same Church were Appropriated to him and his Successors so as thereby they became perpetual Parsons Imparsonees In that Case if the Wife of a Grantor were endowed of the Advowson and Presented a Clerk who was Admitted Instituted and Inducted the Appropriation would be defeated for ever for the whole Estate of the Parson Imparsonee is thereby avoided And so it was Adjudged 2 E. 3. 8. sed Quaere For in the Case of Lancaster and Lucas it was held by the Court That in such Case the Church was Disappropriated but during the life of the Wife and after her death it should remain as Appropriated 11. Sir H. Hobart Chief Justice in the Case of Colt and Glover against the Bishop of Coventry and Lichfield says That the proper and operative word that doth Appropriate is to make the Patron and his Successors Perpetual Parsons and in the Case of Wright against Gilbert Gerrard and Richard Hildersham That the Instrument of Appropriation runs in these words That they and their Successors not their Assigns shall be Parsons or by Periphrasis hold the Church in proper use and the words of Appropriating are that they may hold Ecclesiam Rectoriam in proprios usus as in Grindon's Case and says further that Appropriations cannot endure longer than the Bodies whereunto they were first Appropriate because it carries not only the Glebe and Tithes but doth also give the Spiritual Function makes the Parsons of the Church and supplies Institution and Induction 12. A Prior was seized of the Advowson of a Parsonage the Church being void the Bishop gave him License to hold