Selected quad for the lemma: england_n
Text snippets containing the quad
|
ID |
Title |
Author |
Corrected Date of Publication (TCP Date of Publication) |
STC |
Words |
Pages |
|
A61536
|
A discourse concerning bonds of resignation of benefices in point of law and conscience by ... Edward Lord Bishop of Worcester.
|
Stillingfleet, Edward, 1635-1699.
|
1695
(1695)
|
Wing S5572; ESTC R7708
|
38,719
|
132
|
Incouragement of those in Holy Orders to attend upon the Service of God in them and the Law of the Land hath so annexed the Spiritual Duty with the Temporal Advantage that no one can be capable of the latter that is not obliged to the other So that the Right of Discharging a Spiritual Trust and the Right of Enjoying the Profits go together But to prevent the unspeakable mischief of Purchasing the Profits which are devoted to such a Spiritual use this hath been called by the detestable Name of Simony and very severe Laws have been made not only against the giving of Money but the using of any indirect means to obtain a Presentation Because such things do lessen the Esteem of those who use them and not only thereby make them more uncapable of doing Service but expose the Sacred Function it self to Contempt 2. Another great End of these Laws is to keep the Clergy from Oppression and Slavery I am far from going about to lessen the Just and Legal Rights of Patrons who by our Laws enjoy some Privileges which are not allowed them in other Countries where the Ecclesiastical Law is stricter than here in England as in the liberty of Selling the Rights of Advowsons their Trial at Common Law the six Months for Patrons c. But for our right understanding the present matter it must be consider'd as to the Rights of Patrons That it was not an Original and Absolute Right to dispose of Benefices as they pleased but a limited Trust reposed in them to put-in Fit Persons to Discharge the Duties of their Places It is very well known to all persons who have looked into these matters that in the first Settlement of this Church of England the Bishops of the several Dioceses had them under their own immediate Care and that they had the Clergy living in a Community with them whom they sent abroad to several parts of their Dioceses as they saw occasion to Imploy them but that by Degrees they saw a necessity of fixing Presbyters within such a Compass to attend upon the Service of God among the People that were the Inhabitants that these Precincts which are since called Parishes were at first much larger and cast into such Divisions in each Diocese as probably make up the several Deaneries since that when Lords of Manors were inclined to build Churches for their own Conveniencies they found it necessary to make some Endowments to oblige those who officiated in their Churches to a diligent Attendance that upon this the several Bishops were very well content to let those Patrons have the Nomination of Persons to those Churches provided they were satisfied of the Fitness of those Persons and that it were not deferred beyond such a limited time So that the Right of Patronage is really but a limited Trust and the Bishops are still in Law the Judges of the Fitness of the Persons to be Imployed in the several parts of their Dioceses But the Patrons never had the Absolute Disposal of their Benefices upon their own Terms but if they did not present Fit Persons within the limited time the Care of the Places did return to the Bishop who was then bound to provide for them Some pretend That before the Lateran Council there was no time of Lapse to the Bishop if the Patron did not Present but that the Bishop was to provide one to serve the Cure in the mean time and the Patron might present when he would But this is certainly a Mistake however it be asserted by Persons of great Authority My Lord Coke cites Bracton and Fleta for it but I can find nothing like it in either of them Bracton indeed speaks of the time of Lapse by the Council of Lateran which was to be after six Months if a Dispute happen'd about the Title and this Constitution is extant in the Decretals and the same Words are used by Fleta but not a Word in either of them of any unlimited Power which Patrons had before as far as I can find Which made me wonder at such a Maxim as I find by several father'd on Bracton Ante Concilium Lateranense nullum currebat tempus contra Praesentantes But Rolls very fairly reports it just as it is in Bracton yet afterwards he recites Mr. Selden's words Before this Lateran Council Alex. had sent a Constitution hither which allow'd the Bishops in case any Difference happened about the Patronage to sequester the Profits without fixing the Time which is all the Foundation I can meet with for this famous Maxim But before this we may observe several Canons of Councils which limited the Patrons to three Months These Canons were never receiv'd in England which if I mistake not had always the privilege of six Months for Patrons This I ground upon the Register a Book of great Authority and considerable Antiquity where it is said expresly That the Bishops have not the Right of Lapse till six Months are passed which is said to be Secundum legem Consuetudinem Regni Angliae according to the ancient Custom and Law of England And the like was observed in the old Customs of Normandy But by the Ancient Law of England notwithstanding the Right of Patronage the Bishop of the Diocese had these Rights reserved to him 1. The Right of Admission of the Person presented 2. The Right of Lapse or bestowing the Benefice if the Patron failed his six Months 3. The Right of making an Avoidance by Deprivation or Resignation 1. The Bishop hath by the Law the Right of Admission of the Person presented by the Patron For here from the time of Christianity being receiv'd among the Saxons at least as far as we can trace any Footsteps of the Settlement of a Parochial Clergy it was expresly provided for That no Presbyters should be fixed in any Places without the Consent of the Bishop For this we have a Canon of Theodore Archbishop of Canterbury preserved by Egbert Archbishop of York each the Seventh in their Sees but at some distance of time in his Collection of Canons the words are Statutum est ut sine Authoritate Consensu Episcoporum Presbyteri in quibuslibet Ecclesiis non constituantur nec inde expellantur siquis hoc facere tentaverit Synodali Sententiâ feriatur So that by the Original Constitution of this Church the Bishops had the Power of Fixing Presbyters in Churches and of Removing them if there were occasion and no other Persons could do it without them This doth by no means infringe the Right of Nomination or Presentation of Fit Persons to the Bishop but it implies that no such Presentation was sufficient unless the Bishop did first Approve and Consent to the Person Wherein the Ancient Right of Patronage here in England did consist we cannot have a better Account than from the Words of all the Nobility of England in their Remonstrance to Gregory IX when he attempted to
incroach upon them by Papal Provisions Cum igitur à primâ Christianitatis Fundatione in Angliâ tali fuerint hactenus progenitores nostri gavisi libertate quod decedentibus Ecclesiarum Rectoribus Ecclesiarum Patroni Personas idoneas eligentes ad easdem Diocesanis praesentaverunt ab eisdem Ecclesiarum Regimini praeficiendas These are words of great Weight and do plainly shew that the Right of Patronage consisted in the Nomination of Fit Persons to the Bishop of the Diocese for any vacant Places but that the Bishops were if they approved them to put them into the Possession of them In the time of Innocent III. the King wrote to the Pope that the Nobility and Bishops of England did insist upon it as their Right by the Ancient Custom to build Churches on their own Lands and the Pope yielded it to the Laity provided that they had the Consent of the Bishop of the Diocese and that the Rights of former Churches were not prejudiced thereby But saith Mr. Selden they challenged it without Licence What to do To build Churches on their own Lands but not a word of putting-in any Incumbents by their own power without the Bishop's Consent and Approbation Nay it appears that they could not build Churches on their own Lands without the Bishops Allowance Mr. Selden would fain have it believed That the Right of Presentation to the Bishop of the Diocese came in by the Canon Law about A. D. 1200. But the Insinuations of that kind as they are frequent in his Book of Tythes so they do shew his want of Skill or Ingenuity at that time as much as any one part of it But I need go no farther than this Letter of the Nobility to the Pope who were extremely jealous of their Rights of Patronage and yet they challenged nothing thereby but a Right of Nomination of a Fit Person to the Bishop of the Diocese not a word of Investiture or Collation by the Patron which Mr. Selden talks of He doth not deny That after A. D. 1200 it was the undoubted Law of England for the Patrons to present to the Bishops But I say it was the Law of England before ever the Decretals were made it was the Original and Fundamental Law of the English Church and as Ancient as the Right of Patronage In the same Epistle they desire the Pope to leave them to their ancient Liberty which was Personas idoneas praesentare But who is to be Judge of the Fitness of the Persons For that we have a full Declaration of the Ancient Law and Custom of England in Artic. Cleri c. 13. De Idoneitate Personae praesentatae ad Beneficium Ecclesiasticum pertinet Examinatio ad Iudicem Ecclesiasticum ita est hactenus usitatum fiat in posterum Upon which my Lord Coke saith That the Examination of the Ability and Sufficiency of the Person belongs to the Bishop who is the Ecclesiastical Iudge and in this Examination he is a Iudge and not a Minister and may and ought to refuse the Person presented if he be not Persona idonea And that this was no new Law appears by the words That it had been hitherto so used and should be so for the time to come And so Coke truly saith that this Act was but a Declaration of the Common Law and Custom of the Realm So that the Bishops Power of Examining and Iudging the Fitness of the Person presented is a part of the Common Law of England 15 H. 7. 8. It is declared by all the Judges That the Bishop in the Examination of a Clerk is a Iudge and not a Minister And if he misbehaves himself he is to be punished as a Iudge 18 H. 7. Keilway saith That the Bishop may refuse for Insufficiency and is to give notice to the Patron It was Resolved by the Court in Specot ' s Case That the Court is to give Credit to the Bishop acting Iudicially but then it is said That the Plea must be special and certain And so Coke saith that in a Quare Impedit brought against the Bishop for Refusal of his Clerk he must shew the Cause of his Refusal specially and directly But it was the Opinion of Lord Chief Justice Anderson That in things not Triable at Common Law a General Plea was sufficient But when the Case came to the King's Bench 32 Eliz. it was there said That the Articuli Cleri mention a Reasonable Cause which say they must be Special for Causa vaga incerta non est rationabilis But the main point is Who is to judge what is a Reasonable Cause and I cannot but think that Anderson's Opinion is the truest and most Reasonable If it be for a matter Triable at Common Law that Court is to judge but if not I do not see how it can be avoided but the Bishop must judge and his Judgment of Insufficiency must be taken as well as in any Certificate whatsoever For if the Law trust him with the Judgment of a Matter proper for him to judge of other courts which have no Cognizance of it must give credit to such a Certificate or else they must take upon them to judge in Matters that are not of their Cognisance which is to confound the Jurisdiction of Courts I grant the Judgment of the Bishop is not Conclusive but the Appeal then lies to the Supreme Ecclesiastical Court and the Metropolitan is to be Judge of the Sufficiency of the Person But is not this a great Prejudice to the Right of Patrons if the Bishops are to judge of the Fitness of Persons presented and so the Patrons Presentation may signify nothing if the Bishop pleases This is a Trust which the Law reposes in the Bishop and it lies upon his Conscience to act sincerely in this matter and in case of Examination of Fit Persons a Trust must be placed somewhere and in whom more properly than in the Bishop of the Diocese to whom the Care of it doth especially belong and that by as plain Law as any we have Are not all Judges trusted in Matters that come before them But this is no Decisive Judgment for an Appeal lies according to the Nature of the Matter And this is no other Trust than hath been allow'd in all other Christian Nations where the Rights of Patronage are owned Iustinian owns it several times in his Novels not only that the Bishops are to Examine and Approve those who are nominated by Founders of Churches but if they find them unworthy they may put others in their room By the Capitulars or old Ecclesiastical Laws of France the Lay Patrons are not only to present to the Bishop such as were Probabilis Vitae Doctrinae but if upon Examination they found them otherwise it was in their power to reject them As to the Canon Law there can be no Dispute in this Point but if the Bishop refused an Appeal did lie