and the more Ancient the more Suspicious But the Lord Chancellor and three Chief Judges declared That by the Common Law of England every Bishop in his Diocess and the Archbishops in Convocation may make Canons to bind within the Limits of their Jurisdiction 3. The subordinate Jurisdiction which was lodged in the Bodies of the Clergy resident in Cathedral Churches and of Archdeacons in the several Diocesses I cannot find either of these to have had any Jurisdiction here before the Conquest neither were there any Courts of Justice out of the several Counties before for all Causes were transacted in the County-Courts and Sheriffs Turns and Appeals lay from them to the Supreme Judicature of the King and the Lords But this doth not hinder but these Courts may be founded on the Law of England And so the original Jurisdiction which of Right belonged to the Bishop might by degrees and a gradual Consent come to be committed as to some parts to the Bodies of Cathedral Churches and to the Archdeacons who are saith my Lord Coke Sixty in England We are told in a late Case of Woodward and Fox That there are Archdeaconries in England by Prescription which have no Dependency on the Bishop but are totally exempt And for this Godolphin is cited who refers to the Gloss on the Legatine Constitutions f. 27. where we read of some Archdeacons having a customary and limited Iurisdiction separate from the Bishop for which a Prescription lies But this is only for some special Iurisdiction as the Archdeacon of Richmond for Institutions which came first by Grant from the Bishops but that not being to be produced they insist upon Custom and Prescription as the Deans and Chapters do where the Ancient Compositions are lost But none who understand the Ancient Constitution of this Church can suppose either of them to have been Original since the Right to the Jurisdiction of the Diocess was in the Bishop before there were here either Archdeacons or Chapters with Jurisdiction In the Case of Chiverton and Trudgeon it was declared That an Archdeacon might have a peculiar Jurisdiction as to Administration c. as the Dean of St. Paul's had at S. Pancras and so the Archdeacon of Cornwall as to Wills In the case of Gastril and Iones the Chief Justice declared That the Archdeacon is the Bishop's Officer and his Authority subordinate to the Bishops and granted by them but if special Custom be pleaded that must be well proved to which Dodderidge agreed But we must distinguish between Archdeaconries by Prescription for which I can find no Foundation being all derived by Grant from the Bishop and Archdeacons having some kind of Iurisdiction by Prescription which others have not which cannot be denied All the Power which the Archdeacons have by virtue of their Office is per modum scrutationis simplicis as Lyndwood speaks tanquam Vicarius Episcopi Whatever Power they have beyond this is not Iure communi but Iure speciali and depends either upon Grant or Custom which the Gloss on the Legatine Constitutions calls a limited Iurisdiction The Archdeacon's Court is declared by the Judges in Woodward ' s Case to have been time out of Mind settled as a distinct Court from which there lies an Appeal to the Bishop's Court by the Statute 24 H. 8. c. 12. And so the Archdeacon's Jurisdiction is founded on an immemorial Custom in Subordination to the Bishops As to Deans and Chapters I observe these things 1. That although Ecclesiastical Bodies in Cathedrals were very ancient yet we read not of any Jurisdiction peculiar to themselves during the Saxon times My Lord. Coke saith There were Chapters as the Bishop's Council before they had distinct possessions And by their Books he saith it appears that the Bishops parted with some of their Possessions to them and so they became Patrons of the Prebends of the Church Such were London York and Litchfield 2. That several of our Chapters were founded and endowed by the Bishops since the Conquest Such was that of Salusbury by Osmund out of his own Estate as appears by his Charter and the Confirmation of H. 2. So was that of Lincoln by Remigius who removed the See from Dorchester thither and placed there a Dean Treasurer Praecentor and Seven Archdeacons as Henry of Huntingdon saith who lived near the time And in following times those of Exeter and Wells were settled as Dean and Chapter for they were Ecclesiastical Bodies before but not under that Denomination 3. That some had the legal Rights of Dean and Chapters as to Election of Bishops and Confirmation of Leases c. but were a Monastick Body consisting of Prior and Convent Such were Canterbury Winchester Worcester after the Expulsion of the Secular Canons for the Monks not only enjoyed their Lands but were willing enough to continue the Name of Dean among them As at Canterbury after Dunstan's time Agelmothas is called Dean in Worcester Wolstan is called Dean when he was Prior and Winsius upon the first Change is said to be placed loco Decani by Florence of Worcester At Norwich Herbert the Bishop founded the Prior and Convent out of his own Possessions in the time of William II. and they became the Chapter of the Bishop by their Foundation Now as to these it is resolved in the Dean and Chapter of Norwich's Case That when the King transferred them from a Prior and Convent the Legal Rights remained the same And in Hayward and Fulcher's Case the Judges declared That an Ecclesiastical Body may surrender their Lands but they cannot dissolve their Corporation but they still remain a Chapter to the Bishop And it was not only then delivered but since insisted upon in a famous Case That it was the Resolution of the Iudges That a Surrender cannot be made by a Dean and Chapter without Consent of the Bishop because he hath an Interest in them 4. That H. 8. endowed some as Chapters to new erected Bishopricks as Chester Bristol Oxford c. 31 H. 8 9. 34 H. 8. 17. and united others as Bath and Wells and Coventry and Litchfield 33 H. 8. 30. 34 H. 8. 15. 5. That where the Custom hath so obtained there may be a Legal-Chapter without a Dean as in the Diocesses of S. David's and Landaff where there is no other Head of the Chapter but the Bishop but they must act as a distinct Body in Elections and Confirmations of Grants by the Bishops 6. That by the Ancient Custom of England there are sole Ecclesiastical Corporations as well as aggregate A sole Ecclesiastical Corporation is where a single Person represents a whole Succession and under that Capacity is impowered to Receive and to Convey an Estate to his Successors As Bishops Deans Archdeacons Parsons c. But Parsons and Vicars are seized only in Right of the Church but as to a Bishop he may have a Writ of
their Consciences fly in their Faces and they condemn themselves for their evil Actions And then these very Instances are an Argument against Infidelity for we may justly presume that they would shake off their Fears of another World if they could But why should some Instances of this Nature signifie more against Religion than the many Remarkable Examples of a Godly Righteous and Sober Life among the Clergy to a stronger Confirmation of it For they have had greater Occasion of searching into all the Considerable Difficulties about Religion than others can pretend to and I do not know any that have imployed most Time and Pains about it but have had greater Satisfaction as to the Truth and Excellency of it Thus I have endeavoured to remove the most common Prejudices of our Times against our Profession It would now be proper for me to give some particular Directions to you but that is so much the business of the following Discourses that I shall refer you to them and commend you to the Grace and Blessing of Almighty God that you may so carefully discharge your Duties in this World that it may advance your Happiness in another I am Your Affectionate Friend and Brother EDW. WIGORN Hartlebury C. Apr. 23. 1698. ERRATA PReface pag. viii lin 7. read Birinus p. xii l. 7. r. Kington P. 26. l. 21. after fraudes add p. 126. l. 11. r. Birinus p. 129. l. 9. r. Wulstan p. 142. l. 7. r. Flocks they go to p. 157. l. 17. after but insert to perswade you p. 226. l. 5. for more r. meer p. 236. l. 9. for Titles r. Tithes p. 241. l. 9. r. Aâ—bâ—rdus p. 254. l. 17. r. Guthrun p. 256. l. 17. for than r. as THE CONTENTS CASE I. THE Bishop of Worcester's Charge to the Clergy of his Diocess in his Primary Visitation c. p. 1. II. Of the Nature of the Trust committed to the Parochial Clergy c. p. 103. III. Of the particular Duties of the Parochial Clergy c. p. 175. IV. Of the Maintenance of the Parochial Clergy by Law p. 229. V. Of the Obligation to observe the Ecclesiastical Canons and Constitutions c. p. 325. To which is annexed a Discourse concerning Bonds of Resignation c. A Catalogue of Books published by the Right Reverend Father in God Edward Lord Bishop of Worcester and sold by Henry Mortlock at the Phoenix in St. Paul's Church-Yard A Rational Account of the Grounds of the Protestant Religion being a Vindication of the Lord Archbishop of Canterbury's Relation of a Conference c. from the pretended Answer of T. C. The second Edition Folio Origines Britannicae or the Antiquities of the British Churches with a Preface concerning some pretended Antiquities relating to Britain in Vindication of the Bishop of St. Asaph Folio Irenicum A Weapon-Salve for the Churches Wounds Quarto Origines Sacrae or a Rational Account of the Grounds of Christian Faith as to the Truth and Divine Authority of the Scriptures and the Matters therein contained The Fifth Edition corrected and amended Quarto The Unreasonableness of Separation or an impartial Account of the History Nature and Pleas of the present Separation from the Communion of the Church of England Quarto A Discourse concerning the Idolatry practised in the Church of Rome and the hazard of Salvation in the Communion of it in Answer to some Papers of a revolted Protestant wherein a particular Account is given of the Fanaticism and Divisions of that Church Octavo An Answer to several late Treatises occasioned by a Book entitled A Discourse concerning the Idolatry practised of the Church of Rome and the hazard of Salvation in the Communion of it Part I. Octavo A Second Discourse in Vindication of the Protestant Grounds of Faith against the Pretence of Infallibility in the Church of Rome in answer to the Guide in Controversie by R. H. Protestancy without Principles and Reason and Religion or the certain Rule of Faith by E. W. With a particular Enquiry into the Miracles of the Roman Church Octavo An Answer to Mr. Cressy's Epistle Apologetical to a Person of Honour touching his Vindication of Dr. Stillingfleet Octavo A Defence of the Discourse concerning the Idolatry practised in the Church of Rome in Answer to a Book entitled Catholicks no Idolaters Octavo Several Conferences between a Romish Priest a Fanatick Chaplain and a Divine of the Church of England being a full Answer to the late Dialogues of T. G. Octavo The Council of Trent Examin'd and Disprov'd by Catholick Tradition in the main Points in Controversie between Us and the Church of Rome with a particular Account of the Times and Occasions of Introducing them A Discourse concerning the Doctrine of Christ's Satisfaction or the true Reasons of his Sufferings with an Answer to the Socinian Objections and a Preface concerning the true State of the Controversie about Christ's Satisfaction Octavo Second Edition A Discourse in Vindication of the Doctrine of the Trinity with an Answer to the late Socinian Objections against it from Scripture Antiquity and Reason And a Preface concerning the different Explication of the Trinity and the Tendency of the present Socinian Controversie Octavo Second Edition The Bishop of Worcester's Answer to Mr. Locke's Letter concerning some Passages relating to his Essay of Humane Understanding mention'd in the late Discourse in Vindication of the Trinity Octavo The Bishop of Worcester's Answer to Mr. Locke's Second Letter wherein his Notion of Idea's is proved to be inconsistent with it self and with the Articles of the Christian Faith Octavo Sermons preached upon several Occasions in three Volumes in Octavo The Effigies of the Right Reverend Father in God Edward Lord Bishop of Worcester Engraven on a Copper-Plate Price 6 d. THE BISHOP OF WORCESTER'S CHARGE TO THE CLERGY of his DIOCESE In his Primary Visitation begun at Worcester September 11 th 1690. My Brethren THIS being my Primary Visitation I thought it fitting to acquaint my self with the Ancient as well as Modern Practice of Episcopal Visitations and as near as I could to observe the Rules prescribed therein with respect to the Clergy who are now summoned to appear And I find there were two principal Parts in them a Charge and an Enquiry The Charge was given by the Bishop himself and was called Admonitio Episcopi or Allocutio wherein he informed them of their Duty and exhorted them to perform it The Enquiry was made according to certain Articles drawn out of the Canons which were generally the same according to which the Iuratores Synodi as the ancient Canonists call them or Testes Synodales were to give in their Answers upon Oath which was therefore called Iuramentum Synodale for the Bishop's Visitation was accounted an Episcopal Synod The former of these is my present business and I shall take leave to speak my Mind freely to you this first time concerning several things which I think most useful and fit to be
with it since they let go so many Advantages over the People by the Reformation Thanks be to God we have Scripture and Reason and Antiquity of our side but these are dry and insipid things to the common People unless some Arts be used to recommend them But since our main Support lies in the Honesty and Justice of our Cause without Tricks and Devices we ought to look very well to that part of our Profession which keeps up any Reputation among the People and that is Preaching Those who are so weak or lazy as to be glad to have that laid aside too in a great measure never well considered the Design of our Profession or the way to support it It 's true for some time Preaching was an extraordinary thing in the Church and none but Great and Eloquent Men of Authority in the Church were permitted to preach and the greatest Bishops were then the Preachers as appears by the Sermons of S. Ambrose S. Chrysostom S. Augustin c. And even some of the Bishops of Rome whatever Sozomen saith were frequent Preachers as appears by Gregory's Homilies on Ezekiel and the Gospels And if it were not then practised he did very ill to complain of the Burden of it and the Danger of neglecting it But in other Churches while the Bishop and the Presbyters lived together before parochial Cures were settled the Presbyters had no constant Office of preaching but as the Bishops appointed them occasionally But afterwards when the Presbyters were fixed in their Cures they were required to be very diligent and careful in preaching or instructing the people committed to their Charge as may be seen in many early Canons of the Gallican Church and so it was here in England Council of Cloveshoo c. 8. 14. Egbert Can. 3. and that not only in the moving way in the Pulpit but in the familiar and instructing way which we call Catechizing Concil Cloveshoo c. 11. Can. Egbert 6. Both ought to be done because they are both very useful The Principles and Foundations of Religion must be well laid to make the people have any Taste or Relish of preaching otherwise it is like reading Mathematicks to those who understand not Numbers or Figures Erasmus observes that the Sense of Religion grows very cold without preaching and that the Countess of Richmond Mother to H. 7. had such a Sense of the Necessity of it in those times that she maintained many Preachers at her own Charges and imployed Bishop Fisher to find out the best qualified for it And since the Reformation the Church of Rome hath been more sensible of the Necessity of it as appears by the Council of Trent Cardinal Borromeo one of the most Celebrated Saints since that time frequently insists upon it gives Directions about it and speaks of it as a thing which tends very much to the Glory of God and the Salvation of Souls And to the same purpose other Great Men among them as Cardinal Palaeotus Godeau Bordenave and others Would it not then be a great Shame for us who pretend to a Zeal for Reformation and the true Religion to neglect or lessen the Reputation of those things which our Adversaries have learnt from us and glory in them and those are Diligence in Preaching and Catechizing Which none can despise who value Religion none can neglect who have any Regard to the Interest or Honour of their Profession 3. The next Duty is the solemn Administration of the Sacraments which ought to be done in the publick Assemblies where there is not a great Reason to the contrary The Saxon Canons are express That Baptism unless in Case of Necessity should be administred only in due Times and Places Egber Can. 10 11. While the Ancient Discipline was kept up and Baptism only celebrated at the great Festivals there was a Necessity of its being publick and the Catechumens underwent several Scrutinies which lasted several days in the Face of the Church as S. Augustin observes after they had been kept under private Examination for some time before But when whole Nations were not only converted but Infants generally baptized the former Method of Discipline was changed But yet the Church retained her Right as to Satisfaction about the due Admission of her Members And that is the true Reason why after private Baptism the Child is required to be brought to the publick Congregation For Baptism is not intended to be done before a select Number of Witnesses but in the Face of the Church which is the regular and solemn Way however the Bishop may dispense in some particular Cases which he judges reasonable At first Baptism was administred publickly as Occasion served by Rivers as Bede saith Paulinus baptized many in the Rivers before Oratories or Churches were built Afterwards the Baptistery was built at the Entrance of the Church or very near it which is mentioned by Athanasius S. Chrysostom S. Ambrose S. Augustin c. The Baptistery then had a large Bason in it which held the Persons to be baptized and they went down by Steps into it Afterwards when Immersion came to be disused Fonts were set up at the Entrance of Churches But still the place was publick But in Case of Necessity there is a Form prescribed and I do not see how any without leave can use the Form of Publick Baptism in private Houses which is against both our Ancient and Modern Canons In the Greek Church it is Deprivation to do it and the Synod under Photius confirms it both as to the Eucharist and Baptism because publick Order is to be preserved But it is there understood to be done in Opposition to the Bishop's Authority whose Consent may make the Case different if they judge it reasonable But Ministerial Officers are not Judges in an equitable Case against a standing Rule 4. Another Duty of the parochial Clergy is to be able and ready to resolve Penitential Cases which relate to the Internal Court of Conscience and not the External and Judiciary Court which respects the Honour of the Church as to scandalous Offences committed by the Members of it And this takes in the Private and Occasional Duties of the parochial Clergy for they ought to inform themselves of the Spiritual Condition of their People that they may be able to give suitable Advice and Directions to them both in Health and Sickness But chiefly to be able to give them safe and seasonable Advice under Troubles of Conscience by reason of wilful Sins Duarenus a very considerable Lawyer thinks the main Business of the Clergy as to the Cure of Souls lies in the Power of Binding and Loosing i. e. in dealing aright with the Consciences of Men as to the Guilt of their Sins And the Rules of the Penitential Court are different from those of the Ecclesiastical Court as well as the End is different In the
these I shall discourse in order so as to clear the greatest Difficulties with respect to them 1. As to Appropriations By the Statute of Dissolution 31 H. 8. 13. the new Possessors are to enjoy their Parsonages appropriated Tithes Pensions and Portions and all other Lands belonging to them discharged and acquitted of the Payment of Tithes as freely and in as ample a manner as they were enjoyed before 32 H. 8. 7. It is Enacted That no persons shall be compelled or otherwise sued to yield give or pay any manner of Tithes for any Mannors Lands Tenements or other Hereditaments which by Laws or Statutes of this Realm are discharged or not chargeable with the payment of any such Tithes So that we must enquire into the State of Parsonages appropriated before the Dissolution and how the payment of Tithes stood then I will not deny that there were Churches appropriated to Monasteries in the Saxon times but if Mr. Selden's Doctrine hold good as to the Arbitrary Consecration of Tithes till the Twelfth Century those Churches cannot carry the Tithes along with them but only such Glebe and Oblations as belonged to them For how could the Tithes pass with the Churches if they were not then annexed to them But he confesses That the mention of Tithes with Churches in Appropriations was rare or not at all till after the Normans The Reason might be that the Separation of Tithes from the Churches was not known till the Norman times For the Norman Nobility took little notice of the Saxon Laws about Tithes but finding Tithes paid out of the Lands within their Manors they thought they did well if they gave the whole Tithes or a Portion and Share of them as they thought fit to some Monastery either abroad or at home And this I take to be the true Account of the beginning of Appropriations among us It were endless to give an Account of the Appropriations made by the Normans for the Monasticon is full of them William I. gave several Churches with their Tithes to Battle-Abbey William Rufus added more H. 1. to the Monastery of Reading several Churches in like-manner and H. 2. more Hugh Earl of Chester gave the Tithes of several Manors to the Monastery of St. Werburg in the time of William I. Of which kind the Instances are too many to be mentioned instead thereof I shall set down the State of the parochial Clergy under these Appropriations which was very mean and intended so to be being supplied by the English Clergy 1. Where the Churches and Tithes were appropriated to a Monastery the Vicar had only such a Competency as the Bishop thought fit to allow till Vicarages came to be endowed For right understanding this matter of Appropriations as it stood here in England these things are to be considered 1. That there was a parochial Right of Tithes settled in the Saxon times Which I infer from the Laws of Edgar and Canutus where the Tithes are required to be paid to the Mother-Church and if the Lord of a Manor have a Church on his own Free-land he may retain a third part of the Tithes for the Use of it These Laws are so plain and clear that Mr. Selden does not deny them and he confesses the first Limitation of Profits to be contained in them But what is to be understood by the Mother-Church to which the Tithes were given Mr. Selden would have it the Monastery or Mother-Church but afterwards he grants That a Parochial Right to Incumbents was hereby settled Which is the first legal Settlement of Tithes in a parochial Manner But these Laws of Edgar and Canutus were so solemnly Enacted that as Mr. Selden observes they were particularly called Leges Anglicae the old English Laws in the old Latin MSS. It is a commonly received Opinion among the Lawyers of the best Rank That before the Lateran Council there was no Parochial Settlement of Tithes here My Lord Coke found no such Decree of the Lateran Council under Alexander 3. 5 H. 2. A. D. 1179. and therefore he refers it to a Decretal of Innocent 3. As to the Lateran Council which Lyndwood mentions it plainly speaks of Feudal Tithes which a person enjoyed by the Churches Grant and such might before that Council be given to what Church the person pleased But is there no Difference between Feudal and Parochial Tithes And what Proof is there of any Ancient Infeodations of Tithes here Mr. Selden himself thinks Lyndwood applies the Custom of other Countries to his own But as to the parochial Right of Tithes among us it stands thus By the Saxon Laws the parochial was settled After the Norman Invasion these Laws were neglected and slighted by the Normans H. I. by his Charter restored them H. 1. c. 11. and the very Words of the Laws of Edgar and Canutus are repeated The Normans went on notwithstanding and so these Laws were discontinued in Practice But Hadrian 4. who was an Englishman by Birth observing the disorderly Payments of Tithes here published a Constitution to require the parochial Payment of them as is observed by P. Pithaeus a very learned and impartial Man After him Alexander 3. in a Decretal directed to the Archbishop of Canterbury and his Suffragans complains That whereas the Parishioners had formerly paid their Tithes entirely where they ought to pay them the contrary Custom had obtained and some withdrew the Tithe of Wooll Fish and Mills therefore he requires the strict Payment of them to the Churches to which they were due The latter part only is in the Canon Law but the former is added from the Ancient Copies by Pithaeus As to the Decretal of Innocent III. to which my Lord Coke refers and Mr. Selden thinks was mistaken for the Lateran Council being brought into England with it there is such an Epistle extant in the Collection of his Epistles but not put into the Canon Law and was nothing but an Inforcement of the former Laws and a declaring the contrary Custom void which had too much obtained since the Norman times But in a Decretal extant in the Canon Law De Decim c. 29. he acknowledges the parochial payment of Tithes to be due by common Right Cum perceptio Decimarum ad Paroeciales Ecclesias de Iure communi pertineat Can any thing be plainer than that the parochial Right could not depend upon his Decretal Epistle when himself confesses that they were due by common Right We do not deny that he inforced the payment which had been so grosly neglected in the Norman times and the most they would be brought to in many places was to pay only a third part to the Parish-Priest who officiated and gave the rest to Monasteries and often appropriated the whole Tithes to them either at home or abroad as will abundantly appear by the Monasticon from whence it is plain that they
Ecclesiastical Cases Relating to the DUTIES and RIGHTS OF THE Parochial Clergy STATED and RESOLVED According to the PRINCIPLES OF Conscience and Law By the Right Reverend Father in GOD EDWARD Lord Bishop of Worcester LONDON Printed by I. H. for Henry Mortlock at the Phoenix in St. Paul's Church-Yard 1698. To the Reverend CLERGY OF THE DIOCESE OF WORCESTER My Brethren THE following Discourses do of Right belong to You the Substance of them being contained in what I delivered to You in several Times and Places in the Course of my Visitations In which I endeavoured to lay open the Nature and Dignity of your Function the Rules you are to observe in the Discharge of it and to state and resolve the most Important Cases which Relate to your Duties and Rights according to the Principles both of Law and Conscience For I observed that some had spoken very well of the General Nature of the Ecclesiastical Function without a particular Regard to the Limitations of the Exercise of it by our Laws Others had endeavoured to give Advice and Counsel in Point of Law who meddle not with the Obligation of Conscience And therefore I thought it necessary to joyn both these together that you might have a clear and distinct View of your Duties in both Respects For in a Matter of Positive Institution where only the General Duties are prescribed in Scripture and the Bounds of the Exercise of them depend upon the Laws of the Land I could not see how any Person could satisfie himself in the Discharge of his Duty without a Regard to both For the Care of Souls in General is a Matter of wonderful Weight and Importance and can never be sufficiently considered by those who are concerned in it But no Man among us takes upon him an Indefinite Care of Souls without Regard to Persons or Places for that would produce Confusion and endless Scruples and Perplexities of Conscience about the Nature and Obligation to Particular Duties Which cannot be prevented or removed without a right understanding the different Respect all that have taken our Holy Function upon them do stand in both to the Church in General and to that Particular Cure of Souls which they are admitted to The best way I know to represent them is to consider the Case of Dominion and Property and how far the Vniversal Obligation of Mankind to promote each others Good is consistent with the Care of their own and Families Welfare Adam had in himself the Entire and Original Dominion over all those Things which after became the Subject of particular Property when his Posterity found it necessary to make and allow several Shares and Allotments to distinct Families so as they were not to incroach or break in upon one another But the Law of Nature did not prescribe the Way and Method of Partition but left that to Occupancy or Compact And so the Heads of Families upon their Settlement in any Countrey had a twofold Obligation upon them the first was to preserve the Interest of the whole Body to which they still were bound and were to shew it upon such Occasions as required it The next was to take particular Care of these Shares which belonged to themselves so as to improve them for their Service and to protect them from the Invasion of others And Although this Division of Property was not made by any Antecedent Law yet being once made and so useful to Mankind the Violation of it by taking that which is anothers Right is a manifest Violation of the Law of Nature I do not think that the Distribution of Ecclesiastical Cures for the greater Benefit of the People is of so strict a Nature because the Matter of Property doth not extend to this Case in such a manner But since an Vniversal Good is carried on by such a Division far better than it could be without it there is an Obligation lying on all Persons who regard it to preserve that Order which conduces to so good an End And I cannot see how any Persons can better justifie the Breach of Parochial Communion as such than others can justifie the Altering the Bounds of Mens Rights and Properties because they apprehend that the common Good may be best promoted by returning to the first Community of all things If our Blessed Saviour or his Holy Apostles in the first founding of Churches had determined the Number of Persons or fixed the Bounds of Places within which those who were ordained to so holy a Function were to take care of the Souls committed to them there could have been no Dispute about it among those who owned their Authority But their Business was to lay down the Qualifications of such as were fit to be imployed in it to set before them the Nature of their Duties and the Account they must give of the Discharge of them and to Exhort all such as under took it to a Watchfulness and Diligence in their Places but they never go about to limit the Precincts within which they were to Exercise the Duties incumbent upon them When Churches were first planted in several Countries there could be no such things expected as Parochial Divisions for these were the Consequents of the General spreading of Christianity among the People As is evident in the best Account we have of the Settlement of the Parochial Clergy among us after Christianity was received by the Saxons Which was not done all at once but by several Steps and Degrees It cannot be denied by any that are conversant in our Histories that the Nation was gradually converted from Paganism by the succesful Endeavours of some Bishops and their Clergy in the several Parts of England Not by Commission from one Person as is commonly supposed but several Bishops came from several Places and applied themselves to this Excellent Work and God gave them considerable Success in it Thus Bizinus did great Service among the West Saxons and Felix the Burgundian among the East-Saxons and the Northern Bishops in the Midland-Parts as well as Augustin and his Companions in the Kingdom of Kent And in these Midland-parts as Christianity increased so the Bishops Sees were multiplied Five out of One and placed in the most convenient Distances for the further inlarging and establishing Christianity among the People The Bishops were Resident in their own Sees and had their Clergy then about them whom they sent abroad as they saw cause to those Places where they had the fairest Hopes of Success And according thereto they either continued or removed them having yet no fixed Cures or Titles All the first Titles were no other than being entred in the Bishops Register as of his Clergy from which Relation none could discharge himself without the Bishop's Consent But as yet the Clergy had no Titles to any particular Places there being no fixed Bounds of Parishes wherein any Persons were obliged to be Resident for the better Discharge of their Duties This State of an Vnfixed and
to their Brethren and answer to the Accusations brought against them But suppose they will not and others of the Brethren say they ought not and so fall into Heats and Disputes among themselves about it and make new Parties and Divisions Is not this an admirable Way of preserving Peace and Order and Discipline in a Church And I am as certain this is not the Way of Christ's appointing as I am that God is the God of Order and not of Confusion and that when Christ left the Legacy of Peace to his Church he left a Power in some to see his Will performed But these things can never be objected against us for all are Members of the same Body and are governed by certain and known Rules and if any be guilty of open Violation of it the Way is open to accuse and prosecute them and if they be found guilty the Censures of the Church will render them uncapable of doing it in such a Station or at least to bring them to Confession of their Fault and Promise of future Amendment And now I leave any one to judge whether the Parochial Clergy are not under greater and better Discipline than the Teachers of the separate Congregations II. But the great Complaint of such Men is That we want Parochial and Congregational Discipline so that Faults should be examined and punished where they have been committed but instead of that all Matters are drawn into the Ecclesiastical Court and there Causes are managed so as looks rather like a Design to punish Men in their Purses than for their Faults and the Delays are so great that the Court it self seems to be designed for Penance and grows very uneasie even to those who are the Members of our Church And some think that the proceeding against Men upon Articles of Enquiry not so agreeable to the Rights and Liberties of Mankind In answer to this I shall consider 1. The Proceedings upon Enquiry at Visitations 2. The Method of Proceeding in the Ecclesiastical Courts 3. The Inconveniencies of parochial Discipline 1. As to Enquiries at Visitations They were grounded upon one of the main Pillars of our Law viz. an ancient immemorial Custom founded upon good Reason In the first Canons that ever were made in this Church under Theodore Archbishop of Canterbury the second is That every Bishop is to look after the Government of his own Diocess and not to invade anothers And that in so doing they went about their Diocesses in order to an Enquiry and Correction of Miscarriages is evident from the Council under Cuthbert Archbishop of Canterbury Can. 3. 25. the first Council at Calechyth Can. 3. the Constitutions of Odo Archbishop of Canterbury Can. 3. and the Canon of Edgar Can. 3. But in these Saxon times the Visitations were annual which were found inconvenient and therefore in the Norman times the Archdeacons were taken into a part of the Jurisdiction under the Bishop and visited those years the Bishop did not But we meet with no Archdeacons with any kind of Jurisdiction in the Saxon times we read indeed sometimes of the Name of Archdeacons but they had nothing to do in the Diocess but only attended the Bishop at Ordinations and other publick Services in the Cathedral Lanfranc was the first who made an Archdeacon with Jurisdiction in his See And Thomas first Archbishop of York after the Conquest was the first who divided his Diocess into Archdeaconries and so did Remigius Bishop of Lincoln his large Diocess into Seven Archdeaconries saith H. of Huntingdon And so it was with the rest of which there were two Occasions 1. The laying aside the Corepiscopi in the Western Parts as assuming too much to themselves 2. The publick Services which the Bishops were more strictly tied to as the King's Barons in the Norman times Which was the Reason not only of taking in Archdeacons but likewise of Archpresbyters or Rural-Deans who had some Inspection into the several Deanaries and assisted the Bishop in such things as they were appointed to do and then came in the other Ecclesiastical Officers as Vicars General Chancellors Commissaries c. for we read not of them here at all in the Saxon times but about the time of Hen. II. the Bishops took them for their Assistance in Dispatch of Causes when the King required their strict Attendance on the publick Affairs in the Supreme Court of Parliament 2. As to the Method of Proceeding in the Ecclesiastical Courts it is no other than hath been continued here without Interruption till of late years ever since the Conquest For the Consistory-Court and the Rules of Proceeding there were established by a Law in the time of William the First As far as I can find by King Edward's Laws c. 4. the Bishops did then proceed by the Ecclesiastical Laws although they then sat in the County-Court but this caused so much Confusion that William by a general Consent and a Charter directed to all the People of England doth separate the Ecclesiastical from the Temporal Courts which was enrolled as good Law 2 R. 2. upon occasion of a Suit of the Dean and Chapter of Lincoln and therefore the Charter of Remigius Bishop of Lincoln is more mentioned than others but the same was to all the Bishops and Counties of England as appears by other Copies of it Thus the Consistory-Court was first established as a distinct Court from the County-Court which it was not in the Saxon times for then the Bishop sate with the Civil Magistrate in the same Court and Ecclesiastical Causes were first heard and decided there It seems the People wer very unwilling to go to a new Place and therefore the Law is inforced with severe Penalties for Contempt And those who object against the Reasonableness of the Method of Proceeding in those Courts must reflect upon some of the wisest Nations in the World who have gone upon the same Grounds in all that have received the Civil Law and upon some of the greatest Courts at this time in the Kingdom as the Chancery and Admiralty which go by the same Fundamental Rules As to any Objections which arise from the personal Faults of those who are imployed in them that reaches I am afraid to all Courts and it ought to be the Work and Business of those who look after them to do what in them lies to reform them that others Faults may not be laid at their Doors 3. But for those who would have a Parochial or Congregational Discipline set up as much better and more effectual I shall desire them to consider that since Matters of Discipline are such as that in them the Reputation and Interest of Persons is very much concerned they ought not to be left to Arbitrary Proceedings of any Persons but they ought to be managed by the certain and common Rules of Justice since every Man hath a Right to defend himself when he is accused And unless there be known and
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
Customs of the Realm By which no less Men of the Law than Coke Popham and other Judges did think the Stile of the Court and Manner of their Proceedings was comprehended And the Ancient Episcopal Iurisdiction is declared to be according to Law by the Stat. 1 El. c. 1. and all Foreign Iurisdiction is abolished and the Ecclesiastical Iurisdiction annexed to the Crown of this Realm which is owned by every Bishop when he takes the Oath of Supremacy How then can it be imagined that he should do any more to the Prejudice of the Crown by the Process being in the Bishop's Name than the Lord of a Manor doth when he keeps his Courts in his own Name To suppose that it is owning a Foreign Iurisdiction is ridiculous for the Bishops of England never pretended to act as Ordinaries by Virtue of a Jurisdiction from the Pope but by Virtue of their Original Authority which they had by the Laws of the Realm as to their exterior Jurisdictions And the Authority they then acted by from the Pope was in Cases extraordinary when they were delegated by particular Commission And if there had been any real Derogation from the King's Prerogative in the Process being in the Bishop's Name can any Man of Sense imagine that it would have been permitted in such jealous times as to Supremacy as the latter end of H. 8. and the whole Reign of Q. Elizabeth were wherein the Bishops wanted not Enemies but their Malice would have been too apparent if they had insisted on such Objections But to proceed in shewing that the Ecclesiastical Laws have been owned by Acts of Parliament since the Reformation 2 E. 6. c. 13. n. 13. The Ecclesiastical Iudges are required to proceed according to the King 's Ecclesiastical Laws And to the same purpose 1 El. c. 2. n. 23. Accordingly my Lord Coke frequently owns the Ecclesiastical Laws and Iurisdiction so they be bounded by the Laws of the Realm of which there can be no Question For deciding of Controversies and for distribution of Iustice saith he there be within this Realm two distinct Iurisdictions the one Ecclesiastical limited to certain spiritual and particular Cases the other secular and general for that it is guided by the common and general Law of the Realm And to the same purpose my Lord Chief Justice Hales in several places in a MS. Discourse of the History and Analysis of the Common Law ch 1 and 2. But here the great Difficulty lies in finding out what these Canons and Constitutions are which have been so received and allowed by our Laws For it is certain that several Canons made by Popes were not received here as in the Statute of Merton about Legitimation of Children born before Marriage Stat. Mert. c. 9. where the Lords declared they would not alter the old Laws for a new Canon For Alexander III. in the time of Hen. II. had made a Canon to that purpose but as Glanvil saith it was contra jus consuetudinem Regni The Canon to take away the Benefit of the Clergy from Bigami was debated in Parliament how far it should be received and the Sense there declared which was complained of 51 E. 3. and taken away 1 E. 6. c. 12. The Canon against Investiture of Bishops by a Lay-hand was never here received for although H. 1. after a long Contest gave it up yet it was resumed by his Successors The Canons for Exemption of the Clergy were never fully received here Some Lawyers say it was never observed I suppose they mean according to the Canons but that they had legal Privileges here although not a total Exemption cannot be denied by any one versed in our Laws from the Saxon times The Pope's Canon for the Clergy not being taxed without his consent was never received as appears by the Contests about it in the time of E. 1. and their Submission afterwards The Pope's Canons about Appeals Provisors Dispensations c. were never received by such a general Consent as to make them Laws they were sometimes practised by Connivence and the Kings when it served their purposes let them alone but as often as there was occasion they were contested and denied and Statutes made against the Execution of them Some Canons I find disputed whether they were received by the Law of England or not As the Canon against Clergy mens Sons succeeding their Fathers in their Benefices immediately without a Papal Dispensation is not only a part of the Canon Law but enter'd in our Provincial Constitutions But in the Case of Stoke against Sykes it was held by Dodderidge and Iones two learned Judges That this Canon was not received here And Dodderidge instanced in two other Canons not received as against a Man's marrying a Woman he had committed Adultery with and a Lay-man's not revoking his first Presentation And Sir Iohn Davis mentioned reckoning the Months for Presentation by Weeks and not by the Calendar But both these are disputable Points For some say as to the former That none but the King can revoke a Presentation But the Canonists think a private Patron may vary with the Bishop's Consent And as to the way of computing the Months it hath been differently resolved but in Catesbie's Case it was determined to be Calendar-Months for many Reasons But in the ancient Resolution in the time of E. II. the Tempus semestre was reckoned from Notice to the Patron and not from the Death of the Incumbent Rolls saith By our Law it is from the time the Patron might have notice with regard to the distance of the Place where the Incumbent died Which leaves the matter uncertain But the Register reckons from the Vacancy In many other Cases the foreign Canons were not received for they allow but Four Months to a Lay-Patron but our Law Six Months they deny any Sale of a Right of Advowson but our Law allows it and a Separation of it from the Inheritance which the Canon Law allows not and so in other particulars but these are sufficient to my purpose It is observable that after the Council of Lions where the Pope was present Peckham Archbishop of Canterbury called a Provincial Council wherein he mentions the difference of our Customs from all others and a Temperament to be made suitable to them And our Judges in the great Case of Evans and Ayscough declared That no Canons bind here but such as are recieved by the Realm And Dodderidge said That our Ecclesiastical Law doth not consist of the Pope's Decretals but is an Extract out of the Ancient Canons General and National But the Judges agreed That when they are received they become part of our Law Lord Chief Justice Vaughan saith That if Canon Law be made a part of the Law of the Land then it is as much the Law of the Land and as well and by the same Authority as