looked on Tithes in general as due to the Church as appears by very many of their Ancient Charters but they thought they did very well when they appropriated them to Monasteries of their own Erection or others as they thought fit But this Humour took so much among the Norman Nobility and served so many Purposes of Honour and Devotion as they thought besides Reason of State that the parochial Clergy were reduced to so poor a Condition that Alexander IV. complained of it as the Bane of Religion and Destruction of the Church and as a Poison which had spread over the whole Nation And it must be very scandalous indeed when the Pope complained of it For the Monks that were able generally got their Appropriations confirmed in the Court of Rome 2. There was a Competency to be settled on the parochial Clergy by the Bishops Consent which was required in order to the confirming an Appropriation as may be seen in Multitudes of them in the Monasticon besides those which are preserved in the Churches Registers Sometimes the Endowment is expressed and at other times it is reserved in the Bishop's power to do it as he sees Cause But the Bishops were either so remiss in those Times or the Monks so powerful at Rome that the poor Vicars fared so hardly that in the time of H. 2. Alexander III. sent a Reprimand to the Bishops for favouring the Monks too much and the Clergy too little and therefore requires the Bishops to take care that the Vicar had a competent Subsistence so as to be able to bear the Burden of his Place and to keep Hospitality This was directed to the Bishop of Worcester for it seems so long since the poor Vicars here were hardly provided for And yet I have seen several Forms of Appropriations made by the Bishops here after the Conquest wherein there is a twofold Salvo one for the Bishop's Right and another for a sufficient Maintenance for the Curate although the Church were appropriated ad communem usum Monachorum as of Wolstan Roger and of William in the time of Hen. II. when Alexander III. lived and of Walter de Grey Sylvester c. But it seems where a competent Subsistence had been decreed the Monks took the first Opportunity to lessen it which occasioned another Decretal in the Canon Law wherein any such thing is forbidden without the Bishop's Consent In other Places they pleaded Custom for it thence came another Decree of the Lateran Council to void all such Customs by whomsoever introduced where there was not a competent Subsistence for him that served the Cure The Monks were still refractary in this matter and because the Bishops had Power to refuse any person presented by the Monks unless they did consent to such a reasonable Allowance as the Bishop thought fit therefore they grew sullen and would not present in which Case another Decretal was made to give the Bishop Power to present And after all Clement V. De Iure Patron c. 1. reinforced the former Decretals and injoyned the Diocesans in the strictest manner not to admit any person presented to a Cure where the Church was appropriated unless sufficient Allowance were made by the Bishop's Consent and Approbation and all Custom and Privileges to the contrary are declared to be void But how far doth this hold among us now since the Appropriations are become Lay-Fees and the Bishop's Power is not mentioned in the Statute of Dissolution To this I shall give a clear Answer but I doubt not satisfactory to all Parties concerned For as Necessity and Power so some Mens Interest and Reason live very near one another 1. The Statute of Dissolution leaves all matters of Right as to persons interested just as they were before For by the Surrender the King was to have the Monasteries and Tithes in as large and ample a manner as the Abbots then had them in Right of their Houses and in the same State and Condition as they then were or of Right ought to have been And so res transit cum suo onere But this is not all For there is an Express Salvo for all Rights Claims Interests c. of all Persons and Bodies Politick So that if by the Law of England there was such an Antecedent Right in the Vicar to his Allowance and in the Bishop to assign it it is not taken away by this Statute nor any other 2. By the Law of England the Bishop had a Right to provide a competent Maintenance for supplying the Cure upon an Appropriation We are told by an unquestionable Authority in point of Law that 9 Car. 1. this Point was brought before the Kings Bench in the Case of Thornburgh and Hitchcot The Vicar complained that the Church was appropriated and that he wanted a competent Maintenance a Prohibition was prayed but denied upon this Reason That the Vicar had Reason for his Suit and that the Ordinary might compel the Impropriator to make it greater because in all Appropriations that Power was reserved to the Ordinary And so in the Year-Books it is allowed That the Ordinary may increase or diminish the Vicar's Portion 40 E. 3. Cas. 15. f. 28. By our Provincial Constitutions the Bishop is to take care that the Vicar have a competent Allowance which at that time was set at Five Marks but Lyndwood observes that as the Price of things rose so the Allowance was increased and in Stipendiaries it was then advanced to Eight or Ten Marks which according to Sir H. Spelman's Computation comes to above Sixty Pounds per Annum But some have told us That by some old Statutes even beneficed Persons were not by Law to have above Six Marks per Annum for this was the Sum allowed to Parish Priests which is so gross a Mistake in any that pretend to Law or Antiquity that it is to be wondred how they could fall into it The Truth of the Case was this the parochial Chaplains or Priests were complained of 36 E. 3. n. 23. that they could not be gotten to attend after the Plague but at excessive Rates upon this a Provincial Constitution was made extant in the Parliament Rolls wherein they are obliged to demand no more than Six Marks But who were these Parish-Priests Not such as had the legal Endowments but those who depended on the Good-Will of the Parson or People and were hired to officiate in Chapels of Ease or to perform Offices for the Dead which were so frequent at that time And these were called Annual Chaplains or Masse Chaplains and were distinguished from Domestick Chaplains who officiated in great Mens Houses in their private Oratories and from Beneficed Persons as appears by many Constitutions But whatever was understood by the Act of Parliament then it was repealed 21 Iac. 1. 28. 3. The Law of England as to a competent Subsistence for the Vicars or
nothing else but the common Custom of the Realm My Lord Chief Justice Hales saith That the common Usage Custom and Practice of the Kingdom is one of the main Constituents of our Law Coke quotes Bracton ' s Authority to prove That Custom obtains among us the Force of a Law where it is received and approved by long Use. And of every Custom he saith there be two Essential Parts Time and Usage Time out of Mind and continual and peaceable Usage without Interruption But in Case of Prescription or Custom he saith That an Interruption of Ten or Twenty Years hinders not the Title but an Interruption in the Right the other is only an actual Suspension for a time It may be asked How Time and Usage come to make Laws since Time hath no Operation in Law saith Grotius Not of it self as Grotius there saith but with the Concurrence of other Circumstances it may Bracton saith longa possessio parit jus possidendi and by a long and peaceable Possession Dominion is transferred without either Title or Delivery which he founds on this good Reason That all Claims of Right ought to have a certain Limitation of Time and length of Time takes away any Proof to the contrary Littleton saith That Time out of Memory of Man is said to give Right because no Proof can be brought beyond it And this he calls Prescription at Common Law as it is distinguished from Prescription by the several Statutes of Limitations But whence is it then that an immemorial Possession gives Right Is it from the meer Silence of the Parties concerned to claim it No Silence gives no Consent where Ignorance or Fear may be the Cause of it And is it a Punishment upon the Neglect of the Party concerned So Bracton saith Time doth it per patientiam negligentiam veri Domini But meer Neglect doth not overthrow Right unless there be an antecedent Law to make that Neglect a Forfeiture Is it from a Presumptive Dereliction But that supposes not bare Continuance of Time but some kind of voluntary Act which implies a sort of Consent which doth not appear in this Case And it is a great Mistake in those who think there is no Presumptive Dereliction where there is not a full Consent for it may be where there is the Consent of a mixt Will i.e. partly voluntary and partly involuntary when the Circumstances are such as the Person rather chuses to leave his Right than submit to the lawful Conditions of enjoying it As if a Man would rather quit his Fee than perform the Service which belongs to it Is it from the common Interest of Mankind that some Bounds be fixed to all Claims of Right Because otherwise that Men will be liable to perpetual Disturbance if the Right be permitted to be claimed beyond any possibility of Proof Or is it lastly that in such Nations where immemorial Custom obtains the Force of a Law it seems agreeable to the Foundations of Law that a long continued Possession should carry Right along with it And this was the Case here in England as not only appears by what Bracton hath said but Glanvil makes a great part of our Law to consist of reasonable Customs of long Continuance And St. Germain affirms Ancient general Customs to be one of the principal Foundations of our Law and that they have the Force of Laws and that the King is bound by his Oath to perform them And it is worth our while to observe what general Customs he doth instance in as the Courts of Equity and Law the Hundred Court the Sheriffs Turn the Court Baron c. which depend not upon Acts of Parliament but the Ancient Custom of England which he calls the Common Law And among these Ancient Customs he reckons up Rights of Descent Escheats the different sorts of Tenures Freeholds and the Laws of Property as they are received among us We are now to enquire how far any of our Ecclesiastical Constitutions can be said to be built upon this Foundation and upon immemorial Custom generally received 1. I place 1. the Distribution of this National Church into two Provinces in each whereof there is an Archbishop with Metropolitical Power which lies chiefly in these things 1. The Right of Consecration of his Suffragans 2. The Right of Visitation of every Diocess in such Way and Manner as Custom hath settled it 3. The Right of receiving Appeals from Inferiour Courts of Judicature in Ecclesiastical Matters 4. The Right of presiding in Provincial Councils of the Suffragans of his Province which by the most Ancient Constitutions of this Church were to be held once a Year so it was decreed in the Council under Theodore A. D. 673. but by the Difficulties of the times they were discontinued and so the Authority of examining things through the Province came by a kind of Devolution to the Archbishop and his Courts 5. The Custody of vacant Sees by the Custom of England falls to the Metropolitan if there hath been no Custom or Composition to the contrary And so it hath been upon solemn Debates resolved in our Courts of Common Law Coke thinks that of common Right it belongs to the Dean and Chapter but by Custom to the Archbishop But Panormitan saith There was no Pretence of common Right for them till the time of Boniface VIII 2. The ordinary Jurisdiction of every Bishop over the Clergy of his own Diocess This is as ancient as Christianity among us For no sooner were Churches planted but there were Bishops set over them who had from the Beginning so much Authority that none of the Clergy could either receive or quit his Benefice without their Consent and Approbation and they were all bound to give an Account of their Behaviour at their Visitations and in case of Contempt or other Misdemeamours they were to proceed against them according to the Canons of the Church I do not say the Diocesses were at first all modelled alike or with the same Bounds which they now have which was unreasonable to suppose considering the gradual Conversion of the Nation For at first there was but one Bishop in every one of the Saxon Kingdoms except Kent where was but one Suffragan to the Metropolitan for some time till the Kingdoms came to be united or the Kings consented to an Increase of several Diocesses and uniting them under one Metropolitan which was a Work of Time But in all the Saxon Councils we find no mention of any Ecclesiastical Jurisdiction but what was in the Bishops themselves Concil Cloveshoo Can. 1 4 5. Concil Cealchyth Can. 1. Egbert Canon c. 45 62. The first who began to seek for Exemptions were the Abbots who were under the Bishop's Jurisdiction who was too near them and therefore they endeavoured to get under the Pope's immediate Jurisdiction by Charters of Exemption which the great Abbies either procured or made
Right because the Fee-simple abideth in him and his Chapter and so may a Dean and Master of an Hospital And these are called Bodies Politick by Littleton That the Exercise of the Bishop's Power may be restrained by ancient Compositions as is seen in the two Ancient Ecclesiastical Bodies of St. Paul's and Litchfield Concerning which it is to be observed That where the Compositions are extant both Parties are equally bound to observe their parts Thus by the Remisness and Absence of the Bishops of Litchfield from their See by going to Chester and then to Coventry the Deans had great Power lodged in them as to Ecclesiastical Jurisdiction there After long Contests the matter came to a Composition A. D. 1428. by which the Bishops were to visit them but once in Seven Years and the Chapter had Jurisdiction over their own Peculiars So in the Church of Sarum the Dean hath very large Jurisdiction even out of the Bishop's Diocess which makes it probable to have been very ancient but upon contest it was settled by Composition between the Bishop Dean and Chapter A. D. 1391. But where there are no Compositions it depends upon Custom which limits the Exercise although it cannot deprive the Bishop of his Diocesan-Right 4. The Delegate Jurisdiction which was committed to the several Officers of the Bishops Courts and the Manner of their Proceedings is founded upon immemorial Custom In the Saxon times I find no Delegation of Ecclesiastical Jurisdiction for the Bishops sate in person in the County-Courts and there heard Ecclesiastical Causes as appears by the Charter of H. 1. when he pretended to restore the Saxon Laws c. 7. But William I. had settled the Consistory-Court by as good a Law as any was made at that time distinct from the County-Court and required all Ecclesiastical Causes to be there heard and his Son H. 1. did but make a shew of restoring the Saxon Laws and the former Law came to be generally received and so Mr. Selden yields that it grew to be a general Law which shews that it obtained the Force of a Law by Consent as well as by Authority The Consistory-Courts being thus settled and Numbers of Causes there depending and the Bishops being then by H. 2. in the Constitutions of Clarendon strictly tied to Attendance upon the Supreme Courts of Judicature with other Barons there came a Necessity of taking in other Persons with a delegated Power to hear Causes and to do such other Acts of Jurisdiction as the Bishops should appoint For it was still allowed that Iure communi the Jurisdiction was in the Bishop but Iure speciali in auxilium Episcopi it might be delegated to others And so it hath been here received and not only here but it hath been the general Practice of Christendom As to the manner of Proceeding in the Ecclesiastical Courts it is the same in all Parts and built on the same Grounds with those of our Courts of Equity and Admiralty which are as different from those of the Common Law 5. The settling Parochial Rights or the Bounds of Parishes depends upon an ancient and immemorial Custom For they were not limited by any Act of Parliament nor set forth by special Commissioners but as the Circumstances of Times and Places and Persons did happen to make them greater or lesser In some places Parishes seem to interfere when some place in the middle of another Parish belongs to one that is distant but that hath generally happened by an Unity of Possession when the Lord of a Manor was at the Charge to erect a new Church and make a distinct Parish of his own Demesns some of which lay in the Compass of another Parish But now care is taken by Annual Perambulations to preserve those Bounds of Parishes which have been long settled by Custom But the Bounds of Parishes is not allowed to belong to the Ecclesiastical Jurisdiction II. The next Foundation of Law is a General Practice and Allowance i.e. when things of themselves do not oblige by the Authority of those that made them yet being generally received and allowed they thereby become Law to us This we have in an Act of Parliament 25 H. 8. c. 21. wherein it is said That the People of England are only bound to such Laws as are properly their own being in Subjection to no Foreign Legislative Power But were not many things here received for Laws which were Enacted by a Foreign Authority as the Papal and Legatine Constitutions True say they but it is not by Virtue of their Authority but by the free Consent of the People in the Use and Allowance of them And so they are not observed as the Laws of any Foreign Prince Potentate or Prelate but as the customed and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent and Custom and no otherwise So that here we have a full and express Declaration by Parliament That such Canons as have been received and allowed by ancient Custom make a part of our Laws and continue to oblige provided that they be not repugnant to the King's Prerogative nor to the Laws Statutes and Customs of the Realm as it is expressed in another Act of the same Parliament 25 H. 8. c. 19. The Ecclesiastical Laws saith my Lord Coke are such as are not against the Laws of the Realm viz. the Common Law and the Statutes and Customs of the Realm And according to such Laws the Ordinary and other Ecclesiastical Iudges do proceed in Causes within their Conusance So that by the Acknowledgement of this great Oracle of the Common Law there are Laws Ecclesiastical in force among us and Causes to be judged by those Laws and Officers appointed by the Law to proceed according to them The Ecclesiastical Laws and Ordinances are owned by the Statute 27 H. 8. c. 20. 32 H. 8. c. 7. 35 H. 8. c. 19. after the Commission appointed for the Review of them 1 E. 6. c. 2. The Ecclesiastical Courts are appointed to be kept by the King's Authority and Process to be issued out in his Name in all Suits and Causes of Instance between Party and Party where the Causes are particularly mentioned which belong to those Courts and no Alteration is made in them as to their powers but only that the Process should be in the King's Name But some persons in our Age who love to be always starting Difficulties to humour such as bear ill Will to our Constitution have 〈…〉 although this Act was 〈…〉 M. 2. yet that Repeal 〈…〉 â—ac 25. n. 48. therefore 〈…〉 Stat. 1 E. 6. is 〈◊〉 But the plain and short Answer is this That there was no need of any Debate about the Repeal of the Statute of E. 6. after the first of Q. Eliz. because then the Statute 25 H. 8. c. 20. was expresly revived wherein the Bishops were impowered to act as before they might have done according to the Laws and