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
account 10 Months and 40 Weeks or all one but by accident an Infant may be born after the 40 Weeks or before Si partus nascatur post mortem Patru qui dicitur Posthumus per tantum tempus quod non sit verisimile quod possit esse defuncti filius hoc probato talis dici poterit Bastardus 13. It is agreed on all hands that Bawardy is an Ecclesiastica Cause and of Ecclesiastical Cognizance and therefore if Bastardy be pleaded in disability of a plaintiff the saâ—◠〈◊〉 be tried by the Certificate of the Bishop whether it be in Real Action relating to Inheritance or Personal relating to 〈◊〉 otherwise where Action on the Case will lie But if it be pleaded that the Plaintiff was born at such a place before the Marriage solemnized and so he is a Bastard This the Common Law cals a Special Bastardy and shall be tried by Jury at the Common Law where the Birth is alledged So in the Duke of Suffolk's Case of Partition where Special Bastardy was pleaded and Issue thereupon taken the Trial was awarded to be by a Jury of London And where in an Action upon the Case brought for calling one Bastard the Defendant justified that he was a Bastard it was awarded that it should be tried by the Countrey and not by the Ordinary Which seems somthing Paradoxical that if Bastardy be pleaded in Disability of a Plaintiff then it shall be tried by the Bishops Certificate but if it be pleaded that the Plaintiff was born in such a place before the Marriage then by a Jury The former whereof is said to be a general Bastardy the other a special Bastardy whereas in truth they both seem to differ only in this that the former seems to be a general relating to the Plaintiffs condition in respect of his Disability the other seems to be a special relating to the circumstances of Place and Time of his Nativity but both referring to his Bastardy 14. If a man that is ordered by two Justices of the Peace to keep a Bastard-Child he being according to the said Order the reputed Father shall appeal from the said Order to the next Quarter Sessions according to the Stat. of 18. Eliz. and being there discharged and the said Order repealed shall yet afterwards at another Quarter-Sessions of the Peace upon re-examination of the matter be ordered according to the first Order in that case it hath been held by the Court that the second Sessions had no power to alter the Discharge made by the former Sessions v And in another Case it hath been resolved that before the Statute of 3. Car. c. 4. the Justices at the Sessions had no Authority to intermeddle in the Case of Bastardy till the two next Justices according to the Stat. of 18. Eliz. had made an order therein As also that by the Stat. 3. Car. the Justices of their several Limits are to make an Order in Case of Bastardy 15. C. commenced an Action in the Spiritual Court against W. for saying that he had a Bastard W. the Defendant alledged in the said Court that the Plaintiff was adjudged the reputed Father of a Bastard by two Justices of the Peace according to the Statute whereupon he spake the words The Spiritual Court accepted of his Confession but would not allow of his Justification whereupon he prayed a prohibition and it was granted It is not denied but that if the Spiritual Court try a thing that is of Temporal Cognizance a Prohibition may lie although all the Cause were originally Spiritual as was resolved in Kenns Case in which Case it was likewise resolved that where the Cause is Spiritual there the Spiritual Court hath Jurisdiction and in the Case between Banting and Lepingwell it was resolved that the Judges of the Common Law ought that is the word in the Report to give Faith Credit to the Proceedings of the Spiritual Court albeit it be against the Reason of their Law 16. If a man having a wife take another wife and hath Issue by her living the former wife such Issue is a Bastard for the second Marriage is void If a man marry one within the Degrees prohibited the Issue between them is not by the Common Law a Bastard until there be a Divorce for by that Law the Marriage is not till then void So it is although the Brother Marry the Sister If a Man hath Issue by A. and after Marries her yet the Issue is a Bastard at the Common Law An Ideot may consent to Marriage by the Common Law though he were an Ideot from his birth and his Issue by that Law is Legitimate If the Husband be castrated so that it is apparent that he cannot by any possibility beget any Issue and his Wife have Issue divers years after it shall be a Bastard although it be begotten under Marriage for that it is apparent that it could not be Legitimate 17. By the Law of the Land a Man cannot be a Bastard who is born after the Espousals unless there be some special matter in the case If a Woman be big with Child by A. and after A. Marry her and the Issue is born within the Espousals in this Case by the Common Law the Issue is a Mulier and not a Bastard So if a Woman be big with Child by one Man and after-wards another Marries her and after the Issue is born such Issue is a Mulier for that he is born under Espousals and cannot be held the Issue of him by whom she was with Child because that cannot be certainly known and so it is although the Issue were born within three days after Marriage 18. If a Woman Covert hath Issue in Avoutrie yet if the Husband be able to get a Child and be infra quatuor maria the Issue is no Bastard If a Woman Elope and live in Avoutrie with another Man during which Issue is born in Avoutrie yet it is a Mulier by the Common Law But then the Husband must be infra quatuor maria so as that by intendment he might come to his Wife otherwise the Issue is a Bastard But if a Woman hath Issue her Husband being beyond sea for 7 years together before the Issue was born such Issue is a Bastard at the Common Law If a Feme Covert hath Issue her Husband being beyond Sea for 6 years before the Issue is born it is a Bastard at the Common Law If a Woman hath Issue her Husband being within 14 years of age the Issue is a Bastard at the common Law quaere 19. If A. hath Issue by B. and after they intermarry yet the Issue is a Bastard by the Common Law but it is a Mulier by the Civil Law If the Parents be Divorced causa Consanguinitatis they being ignorant thereof at their Marriage the Issues they
sue the Parishioner in the Ecclesiastical Court for Tithes in kind no Prohibition to be granted on that discharge by Deed for they may well try that having cognizance of the Principal If a Parson Lease all the Tithes of his Benefice to the Parishioner and after sue him in the Ecclesiastical Court for his Tithes in his hands no Prohibition to be granted for the Lease is a good discharge there Likewise if the Parishioner grant Land to the Parson for and in lieu of his own Tithes and after the Parson sue him in the Ecclesiastical Court for the Tithes no Prohibition to be granted for that matter will be a good discharge there If a Parson sue for Tithes in the Ecclesiastical Court and the Defendant there plead an Arbitrement in Bar they shall try that there and no Prohibition to be granted upon that c. for by intendment it is a good discharge there Likewise if a Parson sue for Tithes in the Ecclesiastical Court and the Defendant there plead a Lease of them by Deed by the Parson to him rendring Rent to which the Plaintiff says the Rent was reserved upon condition of Non-payment to be void and averrs that it was not paid at a certain day and the other pleads payment at the day This shall be tryed there and no Prohibition granted If a Parson Lease by Deed the Tithes of the Parish and after sues for the Tithes in the Ecclesiastical Court and there the Lease is pleaded where the Question between them is Whether it be the Tithes of the whole Parish or only of some particular things yet no Prohibition lies for they have cognizance of the Original but if they judge contrary to the Common Law a Prohibition lies after Sentence If a man sue for a Legacy in the Ecclesiastical Court and the Defendant plead a Release in Bar and the Plaintiff deny it that shall be tryed there for that it arises from the Original cause whereof they have the Jurisdiction If an Administrator sue for a Legacy due to the Deceased in the Ecclesiastical Court and the Defendant plead the Release of the Deceased in Bar and the Plaintiff avoid it for that the Deceased was an Ideot That Ideocy shall be tryed there and no Prohibition granted for that they have Jurisdiction of the Original matter If a Parson sue in the Ecclesiastical Court and the Defendant there plead that the Plaintiff was presented upon a Simonaical Contract against the Stat. of 31 Eliz. That shall be tryed there for that they have Jurisdiction of the Original thing But the Ecclesiastical Court can take no cognizance of a Custome whereby the Inheritance is perpetually charged although the thing Customable be cognizable by them And therefore if the Church-wardens of the Parish of S. Libel in the Ecclesiastical Court against J. S. Farmer of the Farm of D. for a Contribution to the Reparation of the Church and alledge that part of the Farm lies in the Parish of S. and part thereof in the Parish of W. and alledge a Custome that the Farmers of the said Farm have used time out of mind to contribute to the Reparation of the Church of S. throughout the whole Farm if the Defendant saith that part of the Land of the said Farm lieth within the Parish of W. and that it had used time out of mind c. for that part to contribute to the Church of W. and not to S. and so deny the said Prescription This shall not be Tryed in the Ecclesiastical Court but at the Common Law and for that a Prohibition lies for they shall not try a Custome in the Ecclesiastical Court by which the Inheritance is to be perpetually charged If A. the Parson of D. sue for Tithes in the Ecclesiastical Court against B. who pleads a Lease for years made to him by the Parson To which A. the Parson Replies That he was Non-resident and absent 80 days and more in such a year c. from his Benefice by which the Lease became void No Prohibition lies upon that plea for that it is grounded on the Statute of 13 Eliz. and although it was Objected That the Judges Ecclesiastical shall not have the Exposition of a Statute yet for that they have Jurisdiction of the Original cause they shall have power to try that which incidently doth arise from thence and the Prohibition was denied 18. A Prohibition was prayed upon the Statute of 23 H. 8. for suing for a Legacy of ten pounds in the Prorogative Court whereas the party did dwell in another Diocess but because the Will was proved in that Court and there Sentence was given for the Legacy and an Appeal upon the Sentence to the Delegates where it was affirmed and endeavour was to stay the Suit by the Statute the party having so long allowed of the Jurisdiction of the Court Adjudged the party came too late now to have a Prohibition 19. In Norwood's Case it was held That where a man is sued in the Ecclesiastical Court for slanderous words a General Pardon doth not aid the party for staying the Suit there which is for or ad instantiam partis But contrary where the party is sued there ex officio Judicis 20. In order to a Prohibition it was surmised That the Defendant was a Clerk and assaulted his Servant and he coming to keep the Peace and to aid his Servant laid his hands peacably upon the Defendant for which he sued him in the Ecclesiastical Court where he pleaded this matter and they would not allow of his plea It was said by the Justices That this Case was out of the Statute of Articuli Cleri Circumspecte agatis for here the party had Quaere by what Law for this is not in the Case of Se Defendendo good cause to beat the Clerk and a Prohibition was granted 21. By the Justices if Issue be joyned whether a Church be void by Cession Deprivation or Resignation it shall be Tried by the Countrey because it is a thing mixt for the Avoidance is Temporal and the Deprivation is Spiritual But habilitie Bastardy ne unque accouple en Loyal Matrimony shall be tried by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the Writ shall be tried by the Country 22. A Sentence was given definitive in the Ecclesiastical Court in a Suit there for Tithes pro triplici valore a Prohibition was prayed a special Prohibition was awarded That they should not proceed to the Execution of the Sentence as to the treble value because that Court is not to give the treble value but the double value only 23. In a Case between a Parson and Church-wardens against one Reynolds it was suggested That all those who had the House wherein the said Reynolds did dwell had used to find meat and drink for the Parson and them going in Procession in Rogation-week at his house and
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
Customs of the place where they are committed Grotius out of Lessius affirms that the Adulterer and Adulteress are not only obliged to indemnifie the innocent party as to all charges of Alimentation of the unlawfully begotten but also to make good what dammage the Legitimate Children may thereby suffer in their Inheritance and whoever doth lessen the Reputation of a Virgin either by force or insinuations shall refund to her as much as she is thereby fallen in value upon the hopes or expectation of her Preferment in Marriage But if by his Sollicitations he hath obtained the use of her body under a promise of Marriage he is obliged to marry her accordingly Grot. de jur bel lib. 2. cap. 17. § 5. Less lib. 11. cap. 10. Dub. 6. 10. Although this Sin of Adultery is properly and of right belonging to the Cognizance of the Ecclesiastical Jurisdiction yet it will not be denied but that as it is an offence against the peace of the Realm for which reason some are of opinion that Avoutry or Bandry is an offence Temporal as well as Spiritual the Justices of the Peace may out of their Sessions require Surety for the good Behaviour of such as offend therein as also of such as by Common Fame are reputed Resorters to houses suspected of maintaining Adultery or Incontinency of such as keep such houses of lewd Women found in such houses of common Whoremongers and common Whores And upon Information given to a Constable that a Man and a Woman be in Adultery or Fornication together or that a Man and woman of evil Fame or Report are gone to a suspected house in the night the Officer may take company with him and if he find them so he may carry them to Prison or before a Justice of Peace to find Sureties for the good Behaviour 11. The Punishment of Adultery is diversified according to the Laws and Customs of several Nations respectively as forementioned and the Penalty thereof with the Saxons of old in this Kingdom was called Lairwite or Lecherwite and Legergeldum from two Saxon words signifying it seems concumbere and mulcta a Fine or Custom of punishing offenders of that kind which Priviledg is said to have belonged anciently to the Lords of some Mannors in reference to their Villains and Tenants And by Statute Law as also by the law of the Land a Wife that clopes and departs from her Husband with an Adulterer and refuses to be reconciled to him loseth or forfeits her Dower or Jointure yea though she departed from him with his own consent to which purpose remarkable is that Case of Sr. John de Camois Son of the Lord Ralph Camois in the time of Ed. the first who of his own voluntary Will gave and demised his own Wife Margaret a Daughter and Heir of John de Gaidesden unto Sr. William Pannell Kt. and together with her gave granted released and Quit-claimed all her Goods and Chattels c. so that neither himself nor any other in his name should ever after make any claim or challenge any interest in the said Margaret or to or in her Goods or Chattels c. Whereupon she demanding her Dower in part of the Lands of Sr. John Camois there happened a Suit at Law wherein she was overthrown by Judgment given That she ought to have no Dower out of his Estate upon the Stat. of Westm 2. Quia recessit à Marito suo in vita sua vixit ut Adultera cum praedicto Gulielmo c. 12. There are of the Church of Rome who hold that Adultery in conjugato cum soluta is minus peccatum quam in conjugata cum soluto the reason they give for it is for that it is far more repugnant to the Law of Nature that one Woman should be joyned to two Men than e contra and suppose that Bigamy in the Patriarchs of old is an impregnable Fortification of that Reason the Feminine Sex will give them but little thanks for this Opinion But leaving them to enjoy the one and the other we hold that This as to the Inquiry and Punishment thereof is properly within the Ecclesiastical Cognizance it being most consonant to Reason that in what Jurisdiction Matrimonial Causes are controvertible in the same should the Violation of Conjugal Rights be discussed to which end as well the Civil as Canon Law though that especially are furnish'd with great variety of Constitutions to obviate all manner of circumstances relating to this Subject Pasch 8. car B. R. Case Matingly vers Martyn It was resolved that the cognizance of all Fornications Adulteries and of persons suspected to live in Adultery doth belong to the Ecclesiastical Court Jones Rep. So then Adulterium being quasi Accessio ad alterius thorum is the violation of anothers Bed whence it is required that either both or one of the Parties be under the Matrimonial Vow for that conjugal circumstance either in the Male or Female is as the causa sine qua non that the luxurious Act falls under the notion of Adultery in distinction from acts of the same kind under other circumstances For the Law holds that it may be committed in a threefold manner either ex parte viri vel feminae vel utriusque alway supposing that one or both are Matrimonializ'd and both living The Penalty of Adultery hath varied according to the Laws and Customs of several Nations and of several Ages in the same Nation as appears by what hath been said on this Subject The punishment of this epidemical evil the very Brutes and meer Animals have given us a president of if credit may be given to such as have made report of the Stork of which Lessius writes out of another Author as being a Creature of strange abhorrency and revenge of Adultery that by the very instinct of Nature the jealous Animal impatient of vindicating his defiled Nest summon'd others of the same Feather to advise in the Case Testifying that in his own time a certain Stork being as it were convicted of Adultery per olfactum masculi sui or the smelling of her Male he conven'd a Flock of other Storks before whom he so prosecuted Nescio qualiter sayes the Author the Indictment against the Female Stork that she was first deplum'd then torn in pieces by the rude Multude of the other Storks as if in a solemn Council they had all unanimosly sentenc'd her to death as an Adulteress If the report seems improbable yet the Moral is very applicable CHAP. XXXV Of Bastards and Bastardy 1. What Bastard signifies the derivation of that word 2. The difference between Bastard and Mulier what Mulier signifies and why so called 3. Bastardy distinguish'd at the Common Law into Special and General Bastardy 4. The Presumptions of Law touching Bastardy in case of the Husbands obsence from his Wife 5. Five Appellations of Bastards for distinctions sake at the Civil Law with respect to the several
which in the days of King Lucius was an Archbishoprick as aforesaid till St. Augustine in the year 598 took on him the Title of Archbishop of England setling his See at Canterbury 8. Upon the abrogating of the Popes power in England by King H. 8. in the Seventh year of his Reign it was concluded that the Archbishop of Canterbury should no more be styled the Popes Legate but Primate and Metropolitan of all England at which time Tho. Cranmer Fellow of Jesus-Colledge in Cambridge who pronounced the Divorce from Queen Katharine of Spain upon his advice given the King to leave the Court of Rome and to require the Opinions of Learned Divines being then in Germany procured such favour with the King that he caused him to be elected to this See of Canterbury and was afterwards with the then Bishop of Duresme made Tutor to King Edward the Sixth 9. The Archbishop of Canterbury was supposed to have had a concurrent Jurisdiction in the inferiour Diocesses within his Province which is not denied in the case of Dr. James only it is there said That was not as he was Archbishop but as he was Legatus Natus to the Pope as indeed so hâ— was before the tâ—me of King H. 8. as aforesaid by whom that Power together with the Pope was abrogated and so it ceased which the Archbishop of York never had nor ever claimed as appears in the forecited Case where it is further said That when there is a Controversie between the Archbishop and a Bishop touching Jurisdiction or between other Spiritual Persons the King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and that is a right of his Crown to distribute to them that is to declare their Bounds Consonant to that which is asserted in a Case of Commendam in Colt and Glovers Case against the Bishop of Coventry and Lichâ—ield where it is declared by the Lord Hobart Chief Justice That the King hath an immediate personal originary inherent Power which he executes or may execute Authoritate Regia Suprema Ecclesiastica as King and Sovereign Governour of the Church of England which is one of those Flowers qui faciunt Coronam which makes the Royal Crown and Diadem in force and vertue The Archbishop of Canterbury as he is Primate over All England and Metropolitan hath a Supereminency and some power even over the Archbishop of York hath under the King power to summon him to a National Synod and Archiepiscopus Eboracensis venire debet cum Episcopis suis ad nutum ejusâ— ut ejus Canonicis dispositionibus Obediens existat Yet the Archbishop of York had anciently not only divers Bishopricks in the North of England under his Province but for a long time all the Bishopricks of Scotland until little more than 200 years since and until Pope Sixtus the Fourth An. 1470. created the Bishop of St. Andrews Archbishop and Metropolitan of all Scotland He was also Legatus Natus and had the Legantine Office and Authority annexed to that Archbishoprick he hath the Honour to Crown the Queen and to be her perpetual Chaplain Of the forementioned Diocesses of his Province the Bishop of Durham hath a peculiar Jurisdiction and in many things is wholly exempt from the Jurisdiction of the Archbishop of York who hath notwithstanding divers Priviledges within his Province which the Archbishop of Canterbury hath within his own Province 10. The Archbishop is the Ordinary of the whole Province yet it is clear That by the Canon Law he may not as Metropolitan exercise his Jurisdiction over the Subjects of his Suffragan Bishops but in certain Cases specially allowed in the Law whereof Hostiensis enumerates one and twenty The Jurisdiction of the Archbishop is opened sometimes by himself nolente Ordinario as in the Case of his Visitation and sometimes by the party in default of Justice in the Ordinary as by Appeal or Nullities Again it may sometimes be opened by the Ordinary himself without the party or Archbishop as where the Ordinary sends the Cause to the Archbishop for although the Canon Law restrains the Archbishop to call Causes from the Ordinary Nolente Ordinario save in the said 21 Cases yet the Law left it in the absolute power of the Ordinary to send the Cause to the Archbishop absolutely at his will without assigning any special reason and the Ordinary may consult with the Archbishop at his pleasure without limitation Notwithstanding which and albeit the Archbishop be Judge of the whole Province tamen Jurisdictio sua est signata non aperitur nisi ex causis Nor is the Subject hereby to be put to any such trouble as is a Grievance and therefore the Law provides that Neminem oportet exire de Provincia ad Provinciam vel de Civitate ad Civitatem nisi ad Relationem Judicis ita ut Actor forum Rei sequatur 11. If the Archbishop visit his Inferiour Bishop and Inhibit him during the Visitation if the Bishop hath a title to Collate to a Benefice within his Diocess by reason of Lapse yet he cannot Institute his Clerk but he ought to be presented to the Archbishop and he is to Institute him by reason that during the Inhibition his power of Jurisdiction is suspended It was a point on a special Verdict in the County of Lincoln and the Civilians who argued thereon seemed to agree therein but the Case was argued upon another point and that was not resolved Likewise by the Statute of 25 H. 8. c. 21. the Archbishop of Canterbury hath power to give Faculties and Dispensations whereby he can as to Plurality sufficiently now Dispense de jure as Anciently the Pope did in this Realm de facto before the making of that Statute whereby it is enacted That all Licenses and Dispensations not repugnant to the Law of God which heretofore were sued for in the Court of Rome should be hereafter granted by the Archbishop of Canterbury and his Successors 12. By the Constitutions and Canons Ecclesiastical Edit 1603. Can. 94. It is Ordained That no Dean of the Arches nor Official of the Archbishops Consistory shall originally Cite or Summon any person which dwelleth not within the particular Diocess or Peculiar of the said Archbishop c. without the License of the Diocesan first had and obtained in that behalf other than in such particular Cases only as are expresly excepted and reserved in and by the Statute of 23 H. 8. c. 9. on pain of suspension for three months In the Case of Lynche against Porter for a Prohibition upon the said Statute of 23 H. 8. c. 9. it was declared by the Civilians in Court That they used to Cite any Inhabitant of and in London to appear and make Answer in the Archbishop of Canterbury's high Court of Arches originally And Dr. Martyn said It had been so used for the space of 427 years before the making of the Statute and upon
17. is to that purpose 11. In former times many Bishops had their Suffragans who were also Consecrated as other Bishops were These in the absence of the Bishops upon Embassies or in multiplicity of business did supply their places in matter of Orders but not in Jurisdiction These were chiefly for the ease of the Bishops in the multiplicity of their Affairs ordained in the Primitive times called Chorepiscopi Suffragan or Subsidiary Bishops or Bishops Suffragans and were Titular Bishops Consecrated by the Archbishop of the Province and to execute such Power and Authority and receive such profits as were limited in their Commissions by the Bishops or Diocosans whose Suffragans they were What Towns or Places to be the Sees of Bishops Suffragans and how many to a Diocess and in what Diocesses appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop or some other Bishop desire the same In which case the Bishop presents Two able persons for any place allowed by the said Act of Parliament whereof his Majesty doth chuse one but at present there are no Suffragan Bishops in England They were no other than the Chorepiscopi of the Primitive Times Subsidiary Bishops ordained for easing the Diocesan of some part of his burthen as aforesaid by means whereof they were enabled to perform such Offices belonging to that Sacred Function not limited to time and place by the ancient Canons by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper Diocess Of these there were twenty six in the Realm of England distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination The Names and Number whereof together with the Jurisdiction and preheminences proportioned to them the Reader may peruse in the Act of Parliament made An. 26 H. 8. 12. According to the Temporal Laws of this Land if a Bishop grant Letters of Institution under any other Seal than his Seal of Office and albeit it be out of his Diocess yet it is good For in Cort's Case against the Bishop of St. Davids and others where the Plaintiff offered in evidence Letters of Institution which appeared to be sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there and which Letters were made also out of the Diocess It was held That they were good enough albeit they were sealed with another Seal and made out of the Diocess for that the Seal is not material it being an Act made of the Institution And the writing and sealing is but a Testimonial thereof which may be under any Seal or in any place But of that point they would advise 13. A Bishop if he celebrate Divine Service in any Church of his Diocess may require the Offerings of that day He may sequester if the King present not and 12 H. 8. 8. by Pollard he must see the Cure served if the person fail at his own Costs He may commit Administration where Executors being called refuse to prove the Will He hath power of distribution and disposing of Seats and charges of Repairs of the Churches within his Diocess He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other but if he will chuse the Clerk of either at his peril he ought at his peril to receive him that hath Right by the Statute He may License Physicians Chirurgions Schoolmasters and Midwives He may Collate by Lapse He may take competent time to examine the sufficiency and fitness of a Clerk He may give convenient time to persons interested to take notice of Avoidances He is discharged against the true Patron and quit of Disturbance to whom it cannot be imputed if he receive that Clerk that is in pursuance of a Verdict after Inquest in a Jure Patronatus He may have Six Chaplains and every Archbishop may have Eight Chaplains He may unite and consolidate small Parishes and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure joyn and associate himself to the Justices of Oyer and Terminer or to the Justices of Assize at the open and general Sessions to be holden at any place within his Diocess in Causes of the Church And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly and is commonly styled the Ordinary of that Diocess where he doth exercise his Episcopal Authority and Jurisdiction In Parliament Bishops as Barons may be present and Vote at the Trial and Arraignment of a Peer only before Sentence of death or loss of Member be pronounced that they may have no hand in blood in any kind they have by Canon Law the Priviledge and Injunction to absent themselves and by Common Law to make Proxies to vote for them 14. ORDINARY according to the acceptation of the Common Law with us is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical immediate to the King He is in Common understanding the Bishop of the Diocess who is the Supervisor and for the most part Visitor of all his Churches within his Diocess and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his Diocess in jure proprio non per deputationem and therefore it is his care to see that the Church be provided of an able Curate Habet enim Curam Curarum and may execute the Laws of the Church by Ecclesiastical Censures and to him alone are made all Presentations to Churches vacant within his Diocess Ordinarius habet locum principaliter in Episcopo aliis Superioribus qui soli sunt Vniversales in suis Jurisdictionibus sed sunt sub eo alii Ordinarii hi videlicet quibus Competit Jurisdictio Ordinaria de jure privilegio vel consuetudine Lindw cap. Exterior tit de Constitutionib 15. The Jurisdiction of the Ordinary or Bishop as to the Examination of the Clerk or as to the Admission or Institution of him into a Benefice is not Local but it follows the person of the Ordinary or Bishop wheresoever he is And therefore if a Clerk be presented to the Bishop of Norwich to a Church which is void within the Diocess of Norwich who is then in London or if it be to a Bishop of Ireland who is then in England and in London the Ordinary may examine the Clerk or give him Admission or Institution in London And so it was adjudged 16. The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first for as he
be a Licentiate in Law or Divinity Cons Trid. 8. Cessio de Reform general Can. 12. They are called the Chief of the Deacons C. 1. de Scrutin in Ord. faciend in whom there is an Ecclesiastical Dignity inherent jure Communi And in some places they have this Dignity sine Officio for Innocentius observes That in Ecclesia Parmensi Archidiaconus nullum exercet Officium nihilominus dignitatem habet Innocent in c. de multa de Praebend But regularly according to the Canon Law Archdeacons as to their Dignity Office and Degree are to be reputed according to the Law Usage and Custome of their own Church and Chapter Hostiens Sum. de Offic. Archid. The Archdeacon is Oculus Episcopi and ipso jure his Vicar in Visitations Corrections and Dispensations in matters Ecclesiastical within his Jurisdiction he hath power of reforming the Clergy of examining and presenting to the Bishop such as are to be Ordained and of putting into possession such as are Presented Instituted and Inducted into Ecclesiastical Benefices 9. Cardinal Otho in his Canon de Archidiaconis hath Ordained That all Archdeacons do prudently and faithfully visit the Churches within their respective Archdeaconries as touching the Sacred Vessels and Vestments thereof and generally to enquire into the Temporalties and Spiritualties belonging to the same and that they endeavour to amend what they find amiss Also that they grieve not the Churches with superfluous charges or expences but require only moderate procurations in their Visitations wherein they may not presume to receive money of any when Crimes are to be corrected or punished nor Sentence any unjustly on purpose to extort money from them on pain of double the Sum to pious uses at the discretion of the Bishop besides other Ecclesiastical punishment Constit Othonis de Archdiaconis 10. The Canon Law doth distinguish of Archdeacons the whole Title throughout De Offic. Archidiac regularly speaks of an Archdeacon General who hath not any Archdeaconry distinctly limited Sed tanquam Vicarius fungitur vice Episcopi Vniversaliter and doth represent the Bishop Extra de Consue non putamus Otherwise it is in him who hath a distinct Limitation of his Archdeaconry for then he hath a Jurisdiction separate from the Bishop which where it is by Custome may be prescribed Gloss in ver Visitent dict Const Otho Consonant to this seems that difference which the Judges took in the Case between Chiverton and Trudgeon wherein they held and agreed That there is a Jurisdiction of one Archdeacon and there is the Jurisdiction of another which is but a peculiar Jurisdiction for the Archdeacon is an Officer who hath a Court of his own in which he hath the Probat of Testaments de jure And Doderidge Justice said That he is a principal Officer belonging to the Bishop est quasi Oculus Episcopi but otherwise it is of one who hath but a special Jurisdiction as the Archdeacon of Richmond hath to make Institutions and so 21 H. 6. 23. the Dean of Pauls in that case hath special Authority in St. Panchridge Hill 17 Jac. B. R. Case Chiverton and Trudgeon Roll. Rep. 11. In the Case between Gastrell and Jones it was said by Ley Chief Justice That it is to be considered what Authority the Archdeacon hath in his own nature as such and what power he may have by Prescription or otherwise The Archdeacon is a Minister subordinate to the Bishop viz. Deputy and Vicar or an Officer under him for in case of Induction the Bishops Warrant is necessary to impower him to give the same He hath also Judicial power but it is not exclusive to the Episcopal Authority but the Bishop is his Superiour Both are Judges but the one subordinate to the other c. And if Sentence be given in the Archdeacons Court the Appeal thence shall not be in the Bishops Court but in the Archbishops And if a man dies Intestate having goods within the Archdeacons Jurisdiction and other Goods within the Jurisdiction of the Ordinary the Archbishop as he said shall commit the Administration to the Archdeacon 12. The Archdeacon of H. having the Parsonage of A. appropriate to it Lett the Land parcel of his Glebe for fifty years in Anno 12 Eliz. The Bishop of E. Patron of the Archdeaconry and the Dean and Chapter confirm it The Archdeacon dies another is Collated to the Archdeaconry It was the Opinion of the Justices in this Case first That the Confirmation by the Bishop was not void for that it was but an Assent only to the Lease of the Possession of the Archdeaconry and not of the Bishop and therefore not within the Statute of 1 Eliz. The second Point was Whether this Lease was void by the Statute of 13 Eliz. Quaere for not Resolved Mich. 37 38 Eliz. B. R. Sir Edw. Denny and Eakenstall 's Case Cro. par 1. 13. The same Case Reported by More An Archdeacon having a Parsonage appertaining to his Archdeaconry before the Statute of 13 Eliz. made a Lease for forty years of the Parsonage which was Confirmed after the Statute adjudged the Lease and Confirmation both good Arkingsall or Eakenstall and Denny's Case More 's Rep. 14. A Quare Impedit was brought by the Executors of J. S. for not suffering them to Present to the Archdeaconry of D. which became void in the life of the Testator and the Writ and Count both supposed a disturbance to the Testator in his life In nunc retardationem Executionis Testamenti praedict In this Case it was Resolved 1. That a Quare Impedit did lie of an Archdeaconry 2. That the Writ as brought should abate because it was in nunc retardationem which cannot be of a Disturbance in the life of the Testator But it was agreed that the Executors might have a special Action upon the Case for their Disturbance Trin. 31 Eliz. B. R. Smalwood and the Bishop of Coventry and Marshes Case Cro. par 1. CHAP. IX Of Procurations Synodals and Pentecostals 1. Procuration what whence so called and how paid 2. Whether Procurations be only due ratione Visitationis 3. Procurations Anciently paid in Victualibus and not in Money how paid to Archdeacons in Lindwoods time 4. Whether Procurations may be payable by Custome to Archdeacons sine Visitatione 5. Archdeacons to Visit personally if otherwise then how the Procurations are payable 6. Not above one Procuration to be paid how that is to be understood 7. The Number of the Visitor's Attendants by the Council of Lateran in reference to Procurations and how many an Archdeacon may have by the Canon 8. Synodals the threefold signification of that word 9. The Synodal anciently called Cathedraticum Synodaticum what the Cathedraticum was why so called the Original thereof and how it differs from Procuration 10. Pentecostal what it is when by and to whom payable the probable Original thereof 11. A remarkeble Case relating to this Subject that was Resolved and Adjudged in Ireland 1. THe
power to cite any to that Court but the Church-Wardens and Sides-men and those he may Impannel and give Articles to them for to enquire as the Justices of Assize Vid. N. B. 41. 17. The Dean of the Deanary of Wolverhampton annexed to the Deanary of Windsor being a Peculiar and having Ordinary Jurisdiction makes a Commissary by his Deed which is Confirmed by the Chapter The Dean dies The question was if that was good to bind his Successor By Doderidge That such a Jurisdiction is Judicial and that Grant is but a Commission and Authority all times remaining in the Ordinary True it is That Ecclesiastical Jurisdiction in Judicial Acts may be executed by a Substitute but in Law they are the Acts of them who Substitute the other Vid. 11 H. 4. 64. a. 7 E. 4. 14. 20 H. 6. 1. That a Commissary may Excommunicate and prove a Testament But that shall be made in the name of the Ordinary 20 E. 3. And a Grant of that by the Bishop is not good but during his life and shall not bind the Succâ—ssor For the Law hath appointed that he shall exercise that Jurisdiction Sede vacante c. The Grant being void cannot be made good by the Confirmation of the Chapter Coke Chief Justice If that should be a good grant to bind the Successor then the Successor cannot remove him And yet the Successor shall answer for the Acts and Offences of the Commissary which would be too hard 18. In Walker's Action upon the Case against Sir John Lambe For disturbance of the Plaintiff in exercising of the Officialty of the Archdeaconry of Leicester granted by the Archdeacon of Leicester and of the Office of Commissary of the Bishop of Lincoln Upon Not guilty pleaded a special Verdict was found That there were Ancient offices granted by c. and Offices of Judicature always granted to one person for life until 1609 and in 30 Eliz. so granted to Dr. Chippindale and after in 1609 granted to him and one Ed. Clerk for their Two lives no Surrender being actually made by Dr. Chippendale Afterwards 1614 both Offices were granted the one by the Archdeacon the other by the Bishop to Sir Jo. Lambe and to the said Ed. Clerk and these Grants confirmed by the Dean and Chapter That in An. 1622. Dr. Chippendale died and afterwards the Archdeacon who granted that Office and the Bishop who granted the Office of Commissary died and the Bishop of Lincolne who now is and the now Archdeacon by several Patents granted these Offices to the Plaintiff who was at the time of the Grant of the Patent a Lay-person and Bachelor of the Civil Law only And they find the Stat. of 37 H. 8. c. 17. That Lay-persons married or unmarried being Doctors of the Civil Law may be Commissaries Officials Scribes or Registers and that the Plaintiff exercised these Offices and the Defendant disturbed him Upon this the matter being argued at the Bar was reduced only to these Two Questions 1 Whether the Patent to the Plaintiff being a Lay-person and not a Doctor of the Law were good or restrained by the Statute of 37 H. 8. And as to that point all the Court conceived The Grant was good for the Statute doth not restrain any such Grant And it is but an affirmance of the Common Law where it was doubted if a Lay or Married person might have such Offices and to avoid such Doubts this Statute was made which explains That such Grants are good enough and it is but an Affirmative Statute and there is no restriction therein And although Doctors of the Law though Lay-persons or Married shall have such Offices yet this is not any restriction That none others shall have them but Doctors of the Law and the Statute mentions as well Registers and Scribes as Commissaries and that a Doctor of the Law shall have them yet in Common experience such persons as are meerly Lay and not Doctors have enjoyed such Offices And for this very point was a Case in this Court Hill 35 Eliz. Rot. 181. between Pratt and Stock where upon Demurrer this Statute was pleaded against the Plaintiff to whom a Commissaryship was granted being but a Bachelor of Law and he having granted Administration the Grant was adjudged good and the Book of Entries 484 489. was allowed good wherefore they Resolved the Grant was well enough And it was also Resolved That where an Officer for life accepts of another Grant of the same Office to him and to another it is not any Surrender of the first Grant The Second point was Whether the office of the Officialty of the Archdeaconry and the office of the Commissary of the Bishop be grantable by the Statutes of 1 Eliz. and 13 Eliz. because it was pretended they were not parcel of the Possessions of the Bishoprick or Archdeaconry so as they could have any profits by them and then the Statute doth not restrain the Grants of them But all the Court Resolved They were within the words and intent of the Statutes for they be Hereditaments and are pertaining unto them And that a Grant of these Offices to Two where they were only grantable to One for life and being granted in Reversion it is a void Grant by the Statutes against the Successors For the Statutes restrain all Grants of any thing to be avoidable against the Successor besides Grants of necessity and Leases for Three lives or 21 years where the ancient Rent is reserved And all other Grants as well of Offices as of other things not warranted by the Statutes are made void as against the Successors Vid. Coke 10. fo 60. the Bishop of Salisbury's Case Coke 5. fo 14. and a Case betwixt Vaughan and Crompton 14 Jac. at the Assizes before the Justices of the Assize for the Office of the Registership in Suffolk and between Johns and Powell for the Registers place of Hereford where it was Adjudged That such Offices granted in Reversion were void whereupon Rule was given That Judgment should be enter'd for the Plaintiff unless other cause were shewn And afterward being moved again Judgment was given for the Plaintiff 19. Noy Attorney Reports the foresaid Case of Dr. Sutton in this manner viz. That he was deprived of the office of Official of Gloucester by the Commissioners 3 Jac. appointed to examine the defects of Chancellors and that he was not read in the Canon or Civil Law He said That time out of mind c. the Bishops have used in their Diocesses to bestow the Chancellorship and that A. the Bishop of c. had made him Chancellor by Deed and that was Confirmed by the Dean and Chapter by which he had a Frank-tenement in that Office c. And Mr. Glanvile moved for a Prohibition but it was denied by the Court for it is lawful for the Commissioners to deprive for Insufficiency that being within their Commission But in a Suit in the Ecclesiastical Court for the Profits of that
Office supposing the Grant of that by the Predecessor does not bind the Successor as it was in Dr. Barker's Case there a Prohibition shall be awarded because the profits are Temporal But we in the first Case cannot try the Sufficiency Vid. 8 E. 3. 70. 9 E. 3. 11. So it is if the Ordinary deprive the Master of a Lay-Hospital for there he is not a Visitor nor is it Visitable by him But otherwise of a Spiritual Hospital 20. The Bishop of Landaff granted the office of his Chancellorship to Dr. Trevor and one Griffin to be exercised by them either joyntly or severally Dr. Trevor for 350 l. released all his Right in the said Office to Griffin so that G. was the sole Officer and then after died After this the Bishop grants the said Chancellorship to R. being a Practicioner in the Civil Law for his life Dr. Trevor surmising that himself was the sole Officer by Survivorship made Dr. Lloyd his Substitute to execute the said office for him and for that that he was disturbed by R. the said Dr. Trevor being Substitute to the Judge of the Arches granted an Inhibition to inhibite the said R. from executing the said Office The Libel contained That one R. hindered and disturbed Dr. Lloyd so that he could not execute the said Office Against these proceedings in the Arches a Prohibition was prayed and day given to Dr. Trevor to shew cause why it should not be granted They urged that the Office was Spiritual for which reason the discussing of the Right thereof appertaineth to the Ecclesiastical Courts But all the Judges agreed That though the Office was Spiritual as to the Exercising thereof yet as to the Right thereof it was Temporal and shall be tryed at the Common Law for the party hath a Freehold therein Vid. 4 5 P. M Dyer 152. 9. Hunt's Case for the Registers Office in the Admiralty and an Assize brought for that And so the Chief Justice said was Adjudged for the Registers Office to the Bishop of Norwich in B. R. between Skinner and Mingey which ought to be tryed at the Common Law And so Blackleech's Case as Warburton said in this Court for the office of Chancellor to the Bishop of Gloucester which was all one with the principal Case And they said That the office of Chancellor is within the Statute of Ed. 6. for buying of Offices c. And so in the manner of Tithing the Prescription is Temporal for which cause it shall be tryed at Common Law And Prohibition was granted according to the first Rule So that if a Bishop grant the office of Chancellorship to A. and B. and after A. release to B. and after B. die and after the Bishop grant it to R. against whom A. sues in the Ecclesiastical Court supposing his Release to be void a Prohibition will lie for that the office is Temporal as to the Right of it though the office be Exercised about Spiritual matters But if a Chancellor be sued in the Ecclesiastical Court to be deprived for Insufficiency as not having knowledge of the Canon Law no Prohibition lies for that they are there the proper Judges of his ability and not the Judges of the Common Law 21. In Dr. Trevor's Case who was Chancellor of a Bishop in Wales it was Resolved That the Offices of Chancellor and Register c. in Ecclesiastical Courts are within the Statute of 5 Ed. 6. cap. 16. which Act being made for avoiding Corruption of Officers c. and advancement of Worthy persons shall be expounded most beneficially to suppress Corruption And because it allows Ecclesiastical Courts to proceed in Blasphemy Heresie Schism c. Loyalty of Matrimonies Probat of Wills c. And that from these proceedings depends not only the Salvation of Souls but also the Legitimation of Issues c. and other things of great consequence It is more reason that such Officers shall be within the Statute than Officers which concern Temporal matters The Temporal Judge committing the Convict only to the Gaoler but the Spiritual Judge by Excommunication Diabolo And there is a Proviso in the Statute for them And it was Resolved That such Offices were within the Purview of the said Statute CHAP. XI Of Courts Ecclesiastical and their Jurisdiction 1. The Antiquity of the Ecclesiastical Laws of England and what the Chief Ecclesiastical Courts are in general anciently called Halimots The Original of the Popes Vsurpation in England 2. The Court of Convocation and Constitutions of Claringdon 3. The High Court of Arches why so called the highest Consistory the Jurisdiction thereof 4. The Judge of this Court whence called Dean of the Arches 5. The great Antiquity of this Court the Number of Advocates and Proctors thereof Anciently limited their decent Order in Court 6. The Prerogative Court of Canterbury 7. The Court of Audience to whom it belonged where kept and what matters it took cognizance of 8. The Court of Faculties why so called what things properly belong to this Court As Dispensations Licenses c. with the Original thereof in England 9 What the nature of a Dispensation is and who qualified to grant it 10. A Dean made Bishop the King may dispence with him to hold the Deanary with the Bishoprick by way of Commendam 11. Whether a Prohibition lies to the Ecclesiastical Courts in case they do not allow of Proof by one Witness 12. Divers Cases at the Common Law relating to Prohibitions to the Ecclesiastical Courts 13. The Court of Delegates 14. The High Commission Court what the Power thereof was 15. The Court of Review or Ad Revidendum 16. The Court of Peculiars 17. In what Cases the Ecclesiastical Court shall have Jurisdiction of matters Subsequent having Jurisdiction of the Original Suit 18. In what Case the party having allowed of the Jurisdiction comes too late to have a Prohibition 19. The difference between a Suit Ad instantiam partis and that ex Officio Judicis in reference to a General Pardon 20. Whether a Cleâ—k may strike his Servant or another in that case the Clerk and be blameless 21. What manner of Avoidance shall be tried at the Common Law and what in the Ecclesiastical Court 22. In what Case a special Prohibition was awarded in a Suit of Tithes after a Definitive Sentence 23. A Prohibition to the Ecclesiastical Court in a Suit grounded on a Custome against Law 24. Prohibition awarded to the Ecclesiastical Court upon refusal there to give a Copy of the Libel 25. Where the Ecclesiastical Court hath cognizance of the Principal they have also of the Accessory though the Accessory of matters Temporal 26. A Prohibition denied upon a Suggestion That the Ecclesiastical Court would not admit of proof by one Witness 27. In what case the Ecclesiastical Court shall have the Cognizance albeit the bounds of a Village in a Parish come in question 28. How the Practice hath been touching Prohibitions where the Subject matter
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
1 Eliz. And it is not within the Statute and although it be within the Commission yet they have not Jurisdiction The words of the Statute are That such Jurisdictions and Priviledges c. as by any Ecclesiastical power have heretofore been or lawfully may be exercised for the Visitation of Ecclesiastical State and Persons and for reformation of the same and for all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities c. These words extend only to men who stir up Dissentions in the Church as Schisimaticks and new-sangled Men who offend in that kind Henden Serjeant The Suit is there for reformation of Manners and before the new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of Defamations but now by express words they have power of these matters And that matter is punishable by the Commissioners for two Causes 1 There is within the Act of Parliament by the words annexed all Jurisdictions Ecclesiastical c. 2 It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Jurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said The Statute de Articulis Cleri gave cognizance to the Ordinary for laying violent hands on a Clerk But you affirm That all is given to the Commissioners and thereby they should take all power from the Ordinary But by the Court the Commissioners cannot meddle for a stroke in Church-Land nor pro subtractione Decimarum And yet they have express Authority by their Commission for by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christmas-day it was said by Richardson Chief Justice That upon Arresting a man upon Christmas-day going to Church in the Church-yard He who made the Arrest may be censured in the Star-Chamber for such an Offence Quod Nota. It was also said by Richardson that if a man submit himself out of the Diocess to any Suit he can never have a Prohibition because the Suit was not according to the Statute 23 H. 8. commenced within the proper Diocâ—ss as it was Adjudged Quod Nota It the Ecclesiastical Court proceed in a matter that is meer Spiritual and pertinent to their Court according to the Civil Law although their proceedings are against the Rules of the Common Law yet a Prohibition does not lie As if they refuse a single Witness to prove a Will for the cognizance of that belongs to them And Agreed also That if a man makes a Will but appoints no Executor that that is no Will but void But if the Ordinary commits the Administration with that annexed the Legatary to whom any Legacy is devised by such Will may sue the Administrator for their Legacies in the Ecclesiastical Court Note P. 4. Jac. B. R. Peep's Case a Prohibition was denied where they in the Ecclesiastical Court refused a single Witness in proof of payment of a Legacy After Prohibition if the Temporal Judge shall upon sight of the Libel conceive that the Spiritual Court ought to determine the cause he is to award a Consultation And by the Staâ— of 50 E. 3. c. 4. the Ecclesiastical Judge may proceed by vertue of the Consultation once granted notwithstanding any other Prohibition afterwards if the matter in the Libel be not enlarged or changed B. Administrator of A. makes C. his Executor and dies C. is sued in the Ecclesiastical Court to make an Account of the goods of A. the first Intestate And C. now moves for a Prohibition and had it for an Executor shall not be compel'd to an Account But an Administrator shall be compel'd to Account before the Ordinary Resolved by the Court That a Prohibition shall not be awarded to the Admiral or Ecclesiastical Courts after Sentence Also that a Plea was there pleaded and refused which was Triable at Common Law Note A Prohibition was awarded upon the Statute of 23 H. 8. because the party was sued out of the Diocâ—ss And now a Consultation was prayed because the Interiour Court had remitted that Cause to the Arches and their Jurisdiction also yet a Consultation was denied A Suit was in the Ecclesiastical Court and Sentence passed for one with Costs and nine months after the Costs are Assest and Taxed and then comes a Pardon of 21 Jac. which relates before the taxing of the Costs But afterwards the Sentence and that Pardon was pleaded and allowed in discharge of the Costs Then W. who had recovered sues an Appeal and P. brought a Prohibition and well and no Consultation shall be awarded because by the Court that Pardon relating before the Taxation of Cost had discharged them As 5. Rep. 51. Hall's Case B. and Two others sue upon three several Libels in the Ecclesiastical Court and they joyn in a Prohibition And by the Court that is not good But they ought to have had three several Prohibitions and therefore a Consultation was granted Mich. 26 27 Eliz. C. B. If A. Libels against B. for Three things by one Libel B. may have One or Three Prohibitions Note Dyor 171. 13. By the Statute of 25 H. 8. cap. 19. Appeals to Rome being prohibited it is Ordained That for default of Justice in any of the Courts of the Archbishops of this Realm c. it shall be lawful to Appeal to the King in his High Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is granted to the King in Chancery on Sentences in places exempt in such manner as was used before to the See of Rome So that this Court grounded on the said Commission is properly as well as vulgarly called The Court of Delegates for that the Judges thereof are Delegated to fit by virtue of the Kings said Commission under his Great Seal upon an Appeal to him in Chancery and that specially in Three Causes 1 When a Sentence is given in any Ecclesiastical Cause by the Archbishop or his Official 2 When any Sentence is given in any Ecclesiastical Cause in places exempt 3 When a Sentence is given in the high Court of Admiralty in Suits or Actions Civil and Maritime according to the Civil Law That this Court of Delegates may Excommunicate was Resolved by all the Judges in the Archbishop of Canterbury's Case They may also commit or grant Letters of Administration This Court of Delegates is the highest Court for Civil Affairs that concern the Church for the Jurisdiction whereof it was provided 25 H. 8. That it shall be lawful for any Subject of England in case of defect of Justice in the Courts of the Archbishop of Canterbury to Appeal to the King's Majesty in his Court of Chancery and
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
to follow the value of the Land and for that the valuing of the Land properly belongs to them As to the second Noy moved That although the Principal be a thing Spiritual yet it is now mixt with a Custome as in the Case de modo Decimandi the Ecclesiastical Court is ousted of his Jurisdiction Houghton Justice It seems so as to other things but the Church being the House of God is more to be regarded and a custome in prejudice to the Reparations of the Church is void for of common Right the House and all Lands are chargeable to the Reparations And the Court commanded him to make a Suggestion of the Custome omitting the value and then they would consider whether a Prohibition should go or no. In Stephenson's Case it was Resolved that if one hath Lands in one Town and doth inhabit in another he shall be compelled to be contributary to the Reparation of the Parish Church where the Lands are 14. Note by Coke Chief Justice That the keeping of a Church-Book for the Age of those which should be Born and Christned in the Parish began in the Thirtieth year of Henry the Eighth by the instigation of the Lord Cromwell 15. Chappel Capella of the French Chapelleé that is aedicula Of this there seems to be three sorts the one such as adjoyns to the Church as parcel of the same built by Persons of Honour ut ibidem Familiaria Sepulchra sibi constituant Another that which is separate from the Mother-Church in a Parish of a large extent built for the better ease and convenience of such Parishioners whose habitations are remote and far distant from the Parish-Church and thence vulgarly called a Chappel of Ease being served by some inferiour Curate at the charge either of the Rector or of such as for whose convenience it is according to the custome or composition A Chappel of Ease is where there is a Parochial Church in the same Parish wherein the Sacraments are administer'd and not in the Chappel 8 H. 6. 32. which appertains to the Parochial Church and the Parson thereof Ibid. And a Parochial Church cannot be a Chappel 8 H. 6. 37. The Third is that which is called a Free-Chappel which in point of Maintenance and endowment as also in respect of exemption from the Ordinaries Jurisdiction seems to differ from both the former and hath perpetual maintenance towards the upholding thereof by a charitable Endowment thereof without the charge of the Rector or Parish So that a Free-Chappel or Libera Capella is according to the opinion of some no other than a Chappel founded within some Parochial precincts for Divine Service by the bounty of some well disposed person over and above the Mother-Church to which it was at the Parishioners choice or liberty for whose convenience it was erected to repair or not and endowed with Maintenance by the Founder and therefore called Free. Notwithstanding which others are of opinion and that more probable That these only are Free Chappels which are of the Foundation of Kings and by them exempted from the Jurisdiction of the Ordinary but the King may also License a Subject to Found such a Chappel and by his Charter exempt it from the Visitation of the Ordinary in respect of which exemption and from the Jurisdiction of the Diocesan it appears by the Register of Writs to be called Free H. 8 E. 3. B. R. Rot. 97. Episcopus Exon attachiat ad respondendum Domino Regi quare exerceret Jurisdictionem in Capella Regia Sanctae Burianae in Cornub c.. The King himself Visits his Free Chappels and Hospitals and not the Ordinary The Lord Chancellor executes it for the King These Chappels were all of them together with Chantries given to the King Of this kind is the Free Chappel of St. Martin le Grand The Canonists are not agreed touching the derivation of this word some take it à capiendo Laicos others à Capra because they conceive that they resemble those Cottages which were wont to be covered over with Goat-skins Others à cappa Divi Martini Others è Chapellee Gallic 16. In the Parish of Aston in the County of Warwick which hath a Parish Church is a certain Chappel of Ease called Castle-Birmidge Chappel and a certain Precinct called Castle-Birmidge the Inhabitants thereof resort to the said Chappel and there Marry Christen and receive the Sacraments there are also Church-wardens and the Inhabitants have a Perambulation there of it self notwithstanding all which when it came in debate whether the Parishioners of the Chappel the Parish-Church of Aston being in decay might be Taxed towards the Reparation thereof they obtained a Prohibition on a Surmize which not appearing to be true a Consultation was awarded yet in that case it was held That if two Churches Parochial be united the Reparation shall be several as before And that a Chappel of Ease is part of the Parish de communi jure liable to reparations of the Parish Church that such as have a Chappel of Ease may resort to the Parish Church if they so please and that the Parson of the Parish-Church may Officiate at the Chappel of Ease if he will 17. The Emperour Justinian in the fifth Collation of his Novel Constitutions commonly called the Authenticks emitted by him after the Digest and the Code hath Ordained That no man build a Chappel in his House without the leave of the Bishop and before he consecrate the place by Prayer and set up the Cross there and make procession in the place and that before he build it he allot out Lands necessary for the maintenance of the same and those that shall attend on God's Service in the place In which Collation there is also that which seems to bear some conformity with the Acts of Uniformity established in this Realm against Seditious Conventicles For in that Collation it is likewise Ordained by the said Emperour That the sacred Mysteries or Ministeries be not done in private Houses but be celebrated in publick places lest thereby things be done contrary to the Catholick and Apostolick Faith unless they call to the celebrating of the same such Clerks of whose Faith and Conformity there is no doubt made or those who are thereunto deputed by the Bishop But Chappels and places to pray in every man may have in his own House if any thing be done to the contrary the House wherein these things are done shall be confiscate and themselves punished at the discretion of the Prince 18. A. the Father had all his life the chief place in a certain Seat in the Church and H. his Son likewise claimed the same and C. disturb'd him in a violent manner the Archbishop of York in whose Jurisdiction this was granted an Inhibition against C till the matter were determined before him and Excommunicated him for Disobedience C. claimed the place by Prescription and for that Reason prayed a Prohibition
Church for that he may then be twice charged for he may be charged for that in the Parish where the Land doth lie in which case Prohibition hath been granted 27. If a Citizen of London erect a House in the Parish of A. with intent of dwelling there in time of Sickness at London and hath not any Land in the Parish and after is Assessed 20 s. for Reparation of the Church where others who have 100 acres of Land in the same Parish pay but 6 d. yet no Prohibition shall be granted on a Suit for the said 20 s. in the Ecclesiastical Court for that they have Jurisdiction of the thing and for which reason they may order it according to their Law 28. If there be a Chappel of Ease within a Parish and any persons of the Parish have used time out of mind c. alone and by themselves without others of the Parishioners to repair that Chappel of Ease and there to hear Divine Service and to Marry and all other things only they Bury at the Mother-Church yet they shall not be discharged of Reparations of the Mother-Church but ought to contribute to the same for the Chappel was Ordained only for their ease But if Inhabitants within a Chappelry prescribe to be discharged time out of mind c. of the Reparation of the Mother-Church and are sued in the Ecclesiastical Court for the same a Prohibition lies on that Surmize 29. If a man be rated for the Ornaments of the Church according to the Land which he hath in the Parish a Prohibition lies for the Rate for that ought to be according to the personal Estate Also if a man who is not any Inhabitant within the Parish but hath Land there be rated for the Ornaments of the Church according to the Land a Prohibition lies for the Inhabitants ought to be rated for that and it was said by Yelverton That it had been often so Resolved 30. If all the Parishioners are not rated for the Reparation of the Church but some are and some are not and those that are rated be sued in the Ecclesiastical Court a Prohibition will lie But if the major part of the Parishioners of a Parish where there are four Bells doth agree that there shall be a fifth Bell made and it be made accordingly and a Rate made for payment of the same it shall bind the lesser part of the Parishioners although they did not agree to it for otherwise any obstinate persons may hinder any thing intended to be done for the Ornament of the Church and therefore in this case a Prohibition was denied 31. The Ecclesiastical Court may not try the Bounds of a Parish if therefore there be a Suit there depending for that a Prohibition will lie as where the difference is between two Vicars concerning a Chappel of Ease As when the Vicar of a Parish Libels against another to avoid his Institution to the Church of D. which he supposes to be a Chappel of Ease belonging to his Vicarage if the Defendant suggest that D. is a Parish of it self and not a Chappel of Ease a Prohibition lies for they may not try the Bounds of a Parish 32. If a Vicar sue the Parson Impropriate for dammages for cutting down the Trees growing in the Church-yard a Prohibition lies for that if the Trees belong to him he may have Trespass at Common Law And in this case a Prohibition was granted 33. One being sued in the Ecclesiastical Court for money for reparation of the Church prayed a Prohibition and had it and after it was moved for a Consultation The case was this viz. The party that was sued prescrib'd that there is a Chappel within the same Village in which they have had at all times Sacramenta Sacramentalia and that he nor the Inhabitants of that Village which resort to the said Chappel have ever used to repair the said Church the first point in this case was whether the Prescription were good and the Chief Justice said that it is contrary to Common right that they who have a Chappel of Ease in a Village should be discharged of repairing the Mother-Church and it may be that the Church being built with Stone it may not need any Reparation within the memory of man and yet that doth not discharge them without some special cause of discharge shewed The second point was the taking away of an Objection as they said viz. That a Prescription which is incident to Ecclesiastical things shall be tried in the Ecclesiastical Court and so that Objection removed and commonly the Church-wardens are chosen in the Ecclesiastical Court yet the Lord of a Mannor may prescribe for that and then it shall not be tried in the Ecclesiastical Court although it be a Prescription of what appertains to a Spiritual thing 34. Note that in the case of Churchwardens the Chief Justice said That for the repairing the Fabrick of the Church the charge is real charges the Land and not the person but for the Ornaments of the Church it is personal and there if a man be not an Inhabitant within the Parish he is not chargeable in respect of his Land for such Tax doth charge the Goods only And to this Chamberlain Justice agreed and none denied it but where there is a Farmor of the Land there the Farmor alone shall not be charged for it is not reason that a poor Husbandman who paies Rent for his Land and perhaps to the utmost value should build Churches but it may be unknown to the Parishioner and the Churchwardens who hath the Fee in reversion and therefore they may impose the whole Tax on the Farmor and he by way of Answer may alledge in the Ecclesiastical Court that he is but the Farmor and thereupon the Tax shall be divided between him and his Landlord according to the Rate which the Land is worth more than the Rent and on the Landlord according to the quantity of the Rent quod quaere for in Jeofferie's Case 5 Coke it is Resolved That the Farmor alone is chargeable and that a Consultation was granted but not for that reason but for that the Reversioner had pleaded an insufficient plea in the Ecclesiastical Court viz. That he was not an Inhabitant within the Parish which is not a good plea as also for the great delay which he had used having made or brought two Appeals and after a Prohibition and so had put the Parish to 60 l. charge for the recovery of 6 l. and for that reason chiefly and not on the matter in Law was the Consultation granted 33. In Frances and Ley's Case it was Resolved by the Justices That Coats of Arms placed in Windows or a Monument placed in the Church or Church-yard cannot be beaten down and defaced by the Parson Ordinary Churchwardens or any other And if they be the Heir by descent interessed in the Coat
c. may have an Action of Trespass 36. In an Action upon the Case D. shewed he was seized of a Messuage and Land in P. to the same belonging and in the Parish of P. time whereof c. and yet is a Chappel in the North part of the Chancel called the Parsons Chancel and the Plaintiff and all those c. have used to sustain and repair the said Chancel and have used for him and his Family to sit in Seats of the said Chancel and to Bury there the persons dying in the said Messuage and that none other during all the said time c. without their License have used to sit there or to be buried there and that the Defendants Praemissorum non ignari malitiose impediverunt him to enter and sit in the said Seats The Defendant said That the Earl of N. was seized of the Honour of F. and the said Chappel was parcel of the said Honour and that the Defendants being Servants of the said Earl and resident within the said Honour did divers times in the time of Divine Service sit in the Seats of the said Chancel by the command of the said Earl upon which it was Demurred Exceptions were taken to the Declaration because he prescribes to have a Liberty appertaining to his House and doth not shew it is an Ancient House And 2 That the Allegation of the disturbance was ill being general without alleding a special Disturbance and how he was disturbed Resolved That when it is supposed he is seized in Fee of a Capital Messuage and time c. it is there included that it is an ancient Messuage and so might have such a priviledge And for the second it is sufficient to alledge a general Disturbance as is usual in the Case of a Fair or Market 37. D. was Indicted upon the Statute of 5 E. 6. for striking in Paul's Church-yard he pleaded that he was by the Queens Letters Patents created Garter King of Arms and demanded Judgment because he was not so named It was the opinion of the Court that because it was a parcel of his Dignity and not of his Office only and because the Patent is Creamus coronamus nomen imponimus de Garter Rex heraldorum that therefore in all Suits brought against him he ought to be named by this name and thereupon he was discharged of the Indictment And in Penhallo's Case who was Indicted upon the same Statute for drawing of Dagger in the Church of B. against J. S. and doth not say with intent to strike him for which cause the Judgment was quashed Likewise in Child's Case who was Indicted for striking in the Church-yard and it was apud generalem Sessionem Pacis tent apud Blandford and it was not said in Comitatu praedicto for which reason the party was discharged though the County was in the Margin 38. In Pym's Case before-mentioned Corven did Libel in the Ecclesiastical Court against Pym for a Seat in a Church in Devonshire And Pym by Serjeant Hutton moved for a Prohibition upon this Reason That himself is seized of a House in the said Parish and that he and all whose Estate he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court That if a Lord of a Mannor or other person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their charges That if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of a Church if a question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed That the Ordinary who hath cure of Souls will take order in such cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Damc Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in B. R. against a Parson Quare tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it was there held That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there is honour of the decased The same reason of a Coat-Armour c. And the Cbief Justice said The Lady might have a good Action during her life in the case aforesaid because she caused the things to be set up there and after her death the Heir shall have his Action they being in the nature of Heir-Looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanae fo 13. Con. 29. Actio datur si aliquis Arma in aliquo loco posita deleat aut abrasit c. And in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter-Term it was Resolved in the Star-Chamber in the case between Hussey and Katherine Leyton That if a man have a House in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such prescription the Ordinary will dispose of common and vulgar Seats 39. In the County of Dorset there was a Mother-Church and also a Chappel of Ease within the same Parish they of the Mother-Church did rate and tax them of the Chappel of Ease towards reparations of the Mother-Church for the which upon their refusal to pay the same being sued in the Ecclesiastical Court they prayed a Prohibition and for cause alledged That they themselves have used time out of mind c. to repair the Chappel at their own proper cost without having any Contribution at all from them of the Mother-Church and that they have been exempted from all charges and reparations of the Mother-Church and yet for their refusal to pay this Tax they were libelled against in the Ecclesiastical Court and a Sentence there passed against them they therefore prayed a Prohibition By the opinion of the whole Court a Prohibition lieth not in this case in regard that this Prescription is meerly Spiritual and therefore a Prohibition denied per Curiam 40. One was presented ex Officio in the Ecclesiastical Court for the not frequenting of his Parish-Church he there pleads That this was not his Parish-Church but that he had used to frequent another Parish Church and to resort unto that And because they in the Ecclesiastical Court would not receive his plea the Court was moved for a Prohibition for that by the Law in the
time of King H. 3. Ed. 3. and Ed. 4. they in the Ecclesiastical Court have not any power to intermeddle with the Precinct of Parish-Churches neither are they there to Judge what shall be said to be a mans Parish-Church And so was the Opinion of the whole Court and therefore by the Rule of the Court a Prohibition was granted 41. Touching the Reparations of a Church and who were liable thereunto this being a question coming in debate before the Judges It was Resolved by the whole Court That for and towards the Reparation of a Church the Land of all as well of Foreigners there not inhabiting as of all others is liable thereunto and this is so by the general custome of the place and this is to be raised by a Rate imposed according to the value of the Land and that in the nature of a Fifteen and this is not meerly in the Realty Williams and Yelverton Justices and Flemming Chief Justice Not the Land but the person of him who occupieth the Land is to be charged Yelverton Justice A man is chargeable for Reparations of a Church by reason of the Land and for the Ornaments in the Church by reason of his coming to Church Williams Justice and Flemming Chief Justice If the person have Land there he is chargeable for both whether he come to Church or not for that he may come to Church if he please 42. In a Prohibition the Case was this The Defendant did Libel before the Bishop of London in the Consistory Court for a Seat in the Church Sentence there passed against the Defendant whereupon he Appealed to the Arches The Court was moved for a Prohibition in regard the Title to the Seat or Pew was grounded upon a Prescription The Court answered c. As for the Title we are not here to meddle with it this being for a Seat in the Church Haughton Justice This Disposition of Pews in the Church belongs of right to the order and discretion of the Ordinary and to this purpose is the case of 8 H. 7. fo 12 and Sir William Hall's case against Ellis Doderidge Justice I moved this case in the Court of C. B. and it was for a Seat in the Church An Action there brought for Disturbance and I there cited Hall's case and 9 E. 4. fo 14. The Case of the Grave-Stone and Coat-Armor for the taking of which an Action of Trespass lies at the Common Law and therefore by the same reason an Action of Trespass should lie for such a Disturbance in a Seat of a Church but there the Judges did all of them say That they would not meddle with the deciding of such Controversies for Seats in the Church but would leave the same to them to whom more properly it belonged Croke Justice Hall's case was this where a man did build an entire Isle in the Church and was at continual charge to repair it if he be disturbed in the use of this he shall for this Disturbance have his remedy at the Common Law and so it hath been adjudged But the Judges all said We are not here to meddle with Seats in the Church Doderidge Justice This Appeal here is like unto a Writ of Error at the Common Law but it doth differ in this By the Appeal the first Judgment or Sentence is suspended but after a Writ of Error brought the first Judgment still remains until it be reversed Coke Chief Justice It was Pym's Case in the Common Bench and 8 H. 7. fo 12. that the Ecclesiastical Court hath Jurisdiction and power to dispose of Pews and Seats in the Church But if there be an Isle built by a Gentleman or by a Nobleman and he hath used to Bury there and there hath his Ensigns of Honour as a Grave-stone Coat-Armor or the like which belongs not unto the Parson if he take them the Heir may well have an Action of Trespass Otherwise it is where the same is repaired at the Common charge of the Parish there they have the disposing of them Ellis and Hall's Case remembred a Kentish Case there the Seat was repaired by him and was belonging to his Capital Messuage by Prescription and so triable at the Common Law And so where the Case is Special that the party doth wholly and solely repair the same in such a case if a Suit be there concerning such a Seat a Prohibition well lieth but not otherwise But if a Nobleman comes to dwell in the Countrey he is now within the sole order and dispose of the Ordinary for his Pew and Seat in the Church and upon the former difference was Pym's case adjudged in the C. B. in this principal Case a Prohibition was denied by the whole Court CHAP. XIII Of Churchwardens Questmen and Sidemen 1. What such are in construction of Law how the choice of them is to be made and wherein the Office doth consist 2. What Actions at Law may lie for or against them 3. Whether Actions lie for the New Churchwardens in Trespas done in time of their Predecessors 4. Certain things appertaining to the Church within the charge and office of Churchwardens to provide and preserve 5. Cases in Law touching the Election of Churchwardens 6. What Sidemen or Questmen are and their duty 7. Action at Law against Churchwardens touching Distress taken by them for money for relief of the Poor 8. A Churchwarden refusing to take the Oath of Enquiry on the 39 Articles Action thereon 9. What remedy in case the Archdeacon refuses to Swear the Church-wardens Elect. 10. The Injunctions of King Ed. 6. touching all Marriages Baptisms and Burials to be Registred in the presence of the Churchwardens 11. Whether the Release of one Churchwarden shall be a Bar to his Companion in an Ecclesiastical Suit commenced by them both 12. Prohibition where Churchwardens have pretended a Custome to chuse the Parish-Clerk 13. The like upon a Presentment by Churchwardens against one in matter more proper for a Leet than the Ecclesiastical Court to take cognizance of 14. The prevalency of Custome against a Canon in choice of a Churchwarden in reference to a Vicar and the Parishioners 15. If question be whether Lands next adjoyning unto a Church-yard shall be charged with the repairs of the Fences thereof and Custome pleaded for it in what Court cognizable 16. In Action of Account by Parishioners against Churchwardens by whom a Release of Câ—sts is pleaded but disallowed in the Ecclesiastical Court whether Prohibition lies in that case 17. Whether Churchwardens are a Corporation qualified for Lands as well as Goods to the use of the Church 18. The Churchwardens disposal of Goods belonging to the Church without the assent of the Sidemen or Vestry void 19. Churchwardens not Ecclesiastical Officers but Temporal employed in Ecclesiastical Affairs Before whom are they to Account 20. Whether Churchwardens may have Action for Trespass done to the Church in their Predecessors time 21. Whether the Parishioners by force of a
Custome or the Parson by virtue of a Canon shall chuse the Churchwarden and whether Prohibition lies in that case 22. Whether Churchwardens as a Corporation may prescribe to take Lands to them and their Successors to the use of the Church 1. CHurchwardens or Guardiani Ecclesiae are certain Officers Parochial annually elected or chosen by and with the consent of the Minister and a select number of the chief Parishioners according to the Custome of the place to look to the Church and Church-yard and to take care of the concernments thereof and of such things as appertain thereto as also to observe and have an inspection into the Behaviour Lives and Conversation of their Parishioners touching such faults and disorders as are within the cognizance and censure of the Ecclesiastical Jurisdiction These Officers are a kind of Corporation enabled to sue and be sued for any matters or things belonging to the Church or Poor of their Parish and have as their Assistants certain Side-men or Questmen who according to the custome of the Parish are yearly likewise chosen to assist the Churchwardens in the Enquiry and presenting such offenders to the Ordinary as are within the Ecclesiastical cognizance and censure aforesaid for which they are not to be sued or troubled at the Law by any such Offenders so presented as aforesaid nor are they obliged to Present oftner than twice a year except it be at the Bishop's Visitation yet they may present as oft as they shall think meet if good occasion shall so require but they may not on pain of being proceeded against by their Ordinaries as in cases of wilful Perjury in Courts Ecclesiastical willingly and wittingly omit to present such publick Crimes as they knew to have been committed or could not be ignorant that there was then a publick same thereof Moreover the Old Churchwardens are to make their Presentments before the New be Sworn till which time the Office of the old continues the usual time for the New Churchwardens to enter upon their Office is the first week after Easter or some week following according to the direction of the Ordinary before which the old Churchwardens shall exhibit the Presentments of such enormities as happened in their Parish since their last Presentments and shall not be suffered to transmit or pass over the same to those that are newly chosen By the Ninetieth Canon the choice of Churchwardens Questmen Sidemen or Assistants is to be yearly made in Easter-week and that by the Joynt-consent of the Minister and the Parishioners if it may be otherwise the Minister to chuse one and the Parishioners another who at their years end or within a month next after shall in the presence of the Minister and the Parishioners make a just Account of what they have received and disbursed for the use of the Church and shall deliver over what remains in their hands belonging to the Church unto the next Churchwardens by Bill Indented 2. One brought Action on the Case against Churchwardens for a false and malicious Presentment of him in the Spiritual Court and found for the Defendants They prayed double Costs on the Statute of 1 Jac. But Jones Crook and Berkley Justices denied it for that the Statute doth not extend to Churchwardens for things of their office in Ecclesiastical Causes They have their Action of Trespass at the Common Law for such things taken away out of the Church as belonged to the Parishioners in reference to the Church And the Release of one of the Churchwardens is no Bar in Law to the other If one take away the Chalice or Surplice out of the Church Action of Trespass lieth against him at Common Law and not in the Ecclesiastical Court So if one lay violent hands on an Ecclesiastical person an Action lies in the Ecclesiastical Court but he shall not there sue for dammages If the Organs or Parish-Bible or the like be taken away out of the Church the Action lies at the Common Law and not in the Spiritual Court for the same for the Churchwardens may have their Action at Common Law in that case But if the Parson take away out of the Church the Scutcheon or Banner of some person deceased his Widow if she did put it there and it be taken away in her life time may have her Action of Trespass at Common Law or after her decease the Heir may have the same Action 3. Trespass brought by the Churchwaâ—dens of F. and declared That the Defendant took a Bell out of the said Church and that the Trespass was done 20 Eliz. It was found for the Plaintiffs It was moved in Arrest of Judgment that it appears by the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have Action and Actio personalis moritur cum persona Vid. 19 H. 6. 66. But the old Churchwardens shall have the Action Coke contrary and that the present Church-wardens shall have the Action and that in respect of their Office which the Court granted And by Gawdy Churchwardens are a Corporation by the Common Law Vid. 12 H. 7. 28. by Frowick That the New Churchwardens shall not have an Action upon such a Trespass done to their Predecessors Contrary by Yaxley Vid. by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass 4. It is the duty of Churchwardens not only to take care of the Concernments of the Church and to present Disorders as aforesaid but also to provide Bread and Wine against the Communion the Bible of the largest Volume the Book of Common Prayer a decent Pulpit a Chest for Alms Materials for repairing the Church and fencing the Church-yard and the like all at the Parish-charge and shall what in them lies prevent the prophanation of Churches by any usage thereof contrary to the Canons It was agreed by the Court in Robert's case That a Tax for the Church cannot be made by the Churchwardens only Hetley's Rep. 5. In Butt's Case Moore Serjeant moved at Court for a Prohibition because where the custome of the Parish or Village was that the Parishioners have used to elect two Churchwardens and at the end of the year to discharge one and elect another in his room and so alternis vicibus c. By the New Canon now the Parson hath the Election of one and the Parish of the other and that he that was elected by the Parishioners was discharged by the Ordinary at his Visitation and for that he prayed a Prohibition Et allocat as a thing usual and of course For otherwise by Hubbard the Parson might have all the Authority of his Church and Parish The like Case to this we have elsewhere reported viz. The Parson and Church-wardens in London by the Custome are a Corporation and the Parishioners time out of mind c. have used at a
fuerunt ideoque Praesentandi Offerendi Clericum jus habent c. Acquirunt autem hoc jus qui de Episcopi consensu vel fundant Ecclesiam vel aedificant vel ante Consecrationem dotant ut non valde sit Obscurum Jus Patronatus c. jus esse Praesentandi Clericum ad Ecclesiam Vacantem ex gratia ei Concessum qui Consentiente Episcopo vel Construxit vel dotavit Ecclesiam Corasius ibid. par 4. cap. 6. And it is gratefully provided by the Canon Law if a Patron or his Posterity being Patrons do fall to decay the Incumbent of the Fruits of the Church by Compulsary censure of the Ordinary according to that Law is to be enforced to make Contribution to them For which reason it is that the Law holds Vtilitas to be one of the three fruits or effects of a Patronage viz. Honos Onus Vtilitas 2. If two Patrons both pretending to the same Church present unto the Ordinary their Clerks respectively who insist on their Admission and the Bishop by admitting the one rejects the other he that is rejected at least his Patron may have his Action against the Bishop not in the Ecclesiastical but Temporal Court by a Quare Impedit or the like In such cases therefore the Bishop is wont to decree a Process commonly called Negotium de Jure Patronatus that is A day fixed and certain is appointed by the Bishop to sit in the Church that is void and a Monition decreed to be served on the Patrons presenting and the Clerks presented then and there to be present to see proceedings in the said business according to Law to which end a Citation issues to Twelve persons whereof six of the Clergy and six of the Laity all of the Neighbourhood of the said vacant Church to be then and there also present by way of an Enquest and on their Corporal Oaths to enquire on certain Articles then ministred to them touching the right of Presentation to the said Benefice These Articles consist chiefly of these Four heads viz. 1 Who last presented to the said Church when it was last void as also for the last two or three times when it was void 2 Whether the person or persons who last presented or these last two or three times or turns at the time and times of Vacancy of the said Church did present in his or their own proper right and title 3 Whether either of the Clerks now presented be known or suspected of any Notorious crime or of Heresie Simony Perjury Adultery or Drunkenness 4 Whether either of the Clerks now presented hath given or promised either by himself or any other for him and in his name or by or with his consent or knowledge any mony or other gratuity directly or indirectly for obtaining of his Presentation to the said Benefice to the Patron thereof or to any other who presented the said Clerk or caused him to be presented On which Articles if it be found by the Verdict of the said Jury that such or such of the said Patrons was in the possession of the Presentation at that time when the Church was last void then is his Clerk to be Admitted if there be no other legal impediment to hinder it that is nothing to affect him with contained in the third or fourth last precedent Articles 3. If two Patrons each pretending a right or title to the Presentation shall present one and the same person severally to the Bishop to be Admitted and Instituted to the Church the Bishop cannot Admit him generally but must in his Admittance of the Incumbent admit him Incumbent of the Presentation only of one of them And if they make such several Presentations claiming by several Titles the Bishop is to direct his Writ de Jure Patronatus for that in such case the Church is become Litigious yet the Bishop is not to award the said Writ but at the instance and request of the said parties And here Q. at whose charge the said Writ of Jure Patronatus shall in this case be suâ—d forth whether at the charge of the Bishop or of the parties for that the old Books as the Reporter gives us to understand do differ in this point Mich. 8 Jac. C. B. in Danby and Linley's Case Vid. 7 Ed. 4. Quare Imp. 100. 34 H. 6. 41. 21 H 6. 43. and 22 H. 6. 28. It is supposed and commonly practised it is sued at the instance and cost of one of the parties or of both if they joyn 35 H. 6. 18. b. 1. 9. a. 34 H. 6. 12. a. Hob. 317. 34 H. 6. 38. 5 H. 7. 22. a. 4. Suppose that a Parson be deprived by the Ordinary or reads not his Articles In which cases the Church is void yet notice must be given to the true Patron for that time or else the Lapse incurs not which is inconvenient for the Church and a prejudice to the Ordinary for how shall he in this case assure himself of a sufficient Notice For if he give notice to him that is not Patron for this very turn his Notice is vain and the true Patron perhaps knows not of the Deprivation or if he knows it needs not Present without notice given him In this Case Sir H. Hobard Chief Justice holds That his way is to award a Jure Patrâ—natus with solemn Premonitions Quorum Interest And then enquiry being made who is Patron to give him Notice and if he Presents not within six months then the Ordinary may Collate though that shall not bind the very Patron yet it shall excuse the Bishop from Disturbance upon Special matter shewed But if the other supposed Patron present and the six months incur Quaere if the true Patron be bound since there was no Notice given him And the Opinion of Hob. is that though without Notice the Patron is not bound by the Lapse yet that is nothing to save the Usurpation of another pretended Patron who is not subject to give Notice Also if a Suit be depending between Two parties touching the right of Presentation and it be not determined within Six months the Bishop may present by Lapse and he that hath right to Present shall recover his Dammages as by the Statute appears 5. The Patron or he that hath right to Present to a Benefice is sometimes termed Adowe alias Avowe Advocatus There is also Advowe Paramount or the highest Patron which is meant only of the King Advocatus est ad quem pertinet jus Advocationis alicujus Ecclesiae ut ad Ecclesiam Nomine proprio non alieno possit Praesentare Britton saith That Avowe is he to whom the right of Advowson of any Church appertains so that he may present thereunto in his own Name And is called Avowe for a difference from those that sometime present in another mans Name as a Guardian that presents in the name of his Ward and for a difference also from those who have the Lands to
void a Stranger doth usurp and presents his Clerk to the Avoidance and Six months pass and afterwards the King being entitled to the Avoidance by reason of the Outlawry bring a Quare Impedit against the Incumbent as being in wrongfully and remove him By this means the Advowson is recontinued again to the Rightful Patron whereof he was ousted by the Usurpation who upon the reversal of the Outlawry shall Present in case the Church becomes void again 12. A man hath Three Avoidances granted him of one Church at one time and by one Deed The Church becomes void the Grantor by Usurpation presents his Clerk who is Admitted Instituted and Inducted afterwards the Church becomes void again In that case the Grantee shall present to the Second Avoidance for that the former Presentation made by the Grantor usurping did not put the Grantee out of all the Avoidances and Adjudged accordingly 13. A. seized of a Mannor with an Advowson appendant presented B. who was Admitted Instituted and Inducted afterwards A. fells the Mannor to which the Advowson was appendant unto J. S. The Church becomes void by the death of B. whereupon the Queen 15 Feb. 1588. Present J. D. by these words viz. Per mortem naturalem Incumbeatis ibid. vacant who thereupon 20th of the said Feb. was Admitted Instituted and Inducted by Letters of Institution Per Dominam Reginam veram indubitatam Patronam The said J. D. dies The King presents R. in these words viz. Ad nostram Praesentationem sive ex pleno jure sive per Lapsum Temporis sive alio quocunque modo spectant The only Question was Whether notwithstanding all this matter the Advowson did remain Appendant or not And it was Adjudged by the Court That the Advowson remained Appendant notwithstanding the Queens presentation of J. D. For it appeared there was no colour of Title to the Queen to present no Lapse for the Presentation Institution c. were all in the same month wherein the Advoidance was And it was no Usurpation by the Queen because the Presentation supposed a Right where none was and so was void for the Queen meant to do no wrong And upon the same reason the Presentation of R. afterwards by the King was void And it was then further holden by the Court That the Presentation of J. D. being void it was but a Collation of the Bishop which makes no disappendancy nor so much as a plenarty against the Rightful Patron but that he may bring his Quare Impedit when he will and if the Bishop receive his Clerk the other is out ipso facto 14. Although an Advowson be a kind of Reversion of a right of Presentation to a Living or Benefice called Spiritual yet it is now in the nature of other Temporal Inheritances and therefore he that hath this Right in him may either devise it by Will or grant it by Deed in Fee or for life or for years as other things And in regard an Advowson or Jus Patronatus refers to and respects not the Oblations and Tithes belonging to the Church but rather the Building thereof with the Ground whereon it is built and the Endowment thereof if therefore any debate or controversie should happen to arise touching any of these last mentioned it might prejudice the Patron as to his Right to the Advowson but if the controversie be only touching the other viz. the Oblations or Tithes whether Great or Small the Jus Patronatus will remain good and entire to the Patron notwithstanding such Controversie provided the Suit doth not extend and be for a fourth part of the whole belonging to the Church Lindw de Foro Comp. cap. Circumspecte verb. Item si Rector gl ibid. verb. quarta pars And he to whom the Right of Advowson of any Church appertains is termed Avowè for distinctions sake to discriminate him from those who sometime Present in the Name of another as a Guardian that presents in the Name of his Minor as also to difference him from such as have only for term of their Lives or of years or by Intrusion or Disseisin the Lands to which an Advowson appertains the Avowè properly and strictly taken being only he who may Present in his own Right and in his own Name 15. It hath been Adjudg'd That an Advowson belonging to a Prebend will not pass by a Lease thereof albeit it hath in it these words viz. Commodities Emoluments Profits and Advantages because all these four words being of one sense and nature imply things gainful which is contrary to the nature of an Advowson regularly as aforesaid yet an Advowson may be yielded in value upon a Voucher and may be Assets in the hand of an Executor and in the foresaid Case of London vers c. it is said That an Appropriation nor the Advowson of it will not pass by the name of an Advowson yet an Advowson will be contained under the name of a Tenement And where the King granted that Monks should have all their Possessions of the Abbey in the Vacation for their sustentation Ruled that they should not have the Advowsons because no sustentation arose from them nor will an Advowson though it be appendant pass in the Kings Grant without special words yet in the Case of a Recusant convict to whose Lands an Advowson is appendant the seizure of Two parts of his Land for the King is a Seizure by consequence of two parts of the Advowson without mention of it and if the King have but Two parts of an Advowson yet he shall Present alone for no Subject can be Tenant in Common with the King who though he be no party to a Quare Impedit yet if his Title appear clear for him against both parties shall have a Writ awarded for him to the Bishop Or if the King joyn issue in a Quare Impedit which is not found fully for him yet if a Title do any way appear the Court must award a Writ to the Bishop for him 16. A. brought Quare impedit against D. The Plaintiff counted that the Defendant had disturbed him to Present ad Vicariam de D. and shewed That the Queen was seized of the Rectory of D. and of the Advowson of the Vicarage of D. and by her Letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam Vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the Vicarage by these words doth not pass nor so in the Case of a Common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmsley Justice the Advowson of the Vicarage had passed 17. Although he who after the death of a Parson Incumbent hath Right of Presentation in him doth not upon a Disturbance bring a Quare Impedit not Darrein Presentment but suffereth a Stranger to usurp upon him yet he
may have a Writ of Right of Advowson but this Writ lieth not for him unless he claim to have the Advowson to him and his Heirs in Fee-simple which Advowson is valuable though the Presentment be not 18. The Queen seized of an Advowson being void the Ancestor of P. Presented and so gained it by Usurpation and then the Church being void he Presented again his Clerk dies and then the Queen grants the Advowson to Y. the Plaintiff who brings a Quare Impedit in the Queens Name supposing that this Usurpation did not put the Queen out of Possession It was argued That the Grant could not pass without special words because it is in the nature of a Chose in Action And Dyer Mead and Windham held That this Usurpation did gain possession out of the Queen and that she should be put to her Writ of Right of Advowson but the Opinion of Anderson Cheif Justice was clearly That the Queen was not out of Possession for he said That it was a Rule in our Books that of a thing which is of Inheritance the act of a Common person will not put the Queen out of possession But if she had only a Chattel as the next Advowson then perhaps it is otherwise But Mead and Windham very earnestly held the contrary relying on the Book of 18 E. 3. where Shard said That if the King had an Advowson in his own Right and a Stranger who had no Right happen to Present it puts the King out of Possession And the King shall be put to his Writ of Right as others shall The Defendant alledged Two Presentations in his Ancestor after the Title of the King and demanded Judgment if the King should have a Writ of Possession and the Plea was admitted to be good But after Pasch 25 Eliz. Judgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 19. In a Quare Impedit by G. against the Bishop of L. and D. Incumbent The Case was That a Mannor with the Advowson Appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question All the Justices held clearly That the Avoidance would not pass because it was a Chattel vested And Periam said that in case of a Common person without question an Advowson appendant would not pass by such Grant for if the Father die it shall go to his Executor but if it be an Advowson in Gross in case of a Common person there is some doubt But in the Principal Case all the Judges held ut supra and said That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster But F. N. B. is contrary 33. N. 20. Of Advowsons there are three Original Writs whereof one is a Writ of Right the other two of Possession viz. Darrein Presentment and Quare Impedit And where an Advowson descendeth unto Parceners though one Present twice and usurpeth upon his Co-heir yet he that was negligent shall not be clearly barr'd but another time shall have his turn to Present when it falleth And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living or to Collate or Nominate to any Donative whatsoever the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge Also by the Statute of 13 E. 1. 5. it is directed what Action shall be maintained by him in the Reversion who is disturbed to Present after the Expiration of a particular Estate where there is also provided a Remedy for him in the Reversion or Remainder or others that have right where there is an Usurpation of an Advowson during any particular Estate And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes but by lawful means Likewise it is Statute-Law to hold That Advowsons shall not pass from the King but by Special words for when the King doth give or grant Land or a Mannor with the Appurtenances unless he make express mention in his Deed of Advowsons of Churches when they fall belonging to such Mannor or Land they are reserved to him notwithstanding the word Appurtenances albeit among Common persons it hath been otherwise observed nor is it lawful to purchase an Advowson during the dependancy of a Suit at Law concerning the same 21. If a Feme Covert be seized of an Advowson and the Church becomes void and the Wife dieth the Husband shall Present Where Parson and Vicar be Endowed in one Church and the Vicarage becomes void the question is To whom the Advowson of the Vicarge doth belong and who in that case shall be said to be the Patron of the Vicarage Whether the Patron of the Parsonage or the Parson It seems the Books at Common Law the Judges and the Court were divided in Opinion touching this point some of the Judges were of Opinion That the Advowson of the Vicarage appertains to the Parson Others that it belongs to the Patron Such as inclined that it is in the Patron gave for reason That the Ordinary cannot make a Vicar without the assent of the Patron 5 E. 2. Quare Impedit 165. puts the Case That although the Vicarage be Endowed with the assent of the Patron and Ordinary yet the Advowson of the Vicarage doth remain in the Parson because the same is parcel of the Advowson of the Parsonage And 16. E. 3. Grants 56. it was a question Whether by the Grant of the Advowson of the Church the Advowson of the Vicarage did pass and there it was said by Stone That it doth pass as Incident to the Parsonage And in regard the Vicar is as the Parsons Substitute and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson whose Concern it is to see that he be a fit and able person sufficient for the Cure it should thence seem rational that the Parson should be his Patron to Present such an one to the Vicarage as shall be sufficient for the Cure for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson than to the First Patron of the Parsonage Appropriate 22. An Advowson cannot it seems at the Common Law be called a Demesne for that it is not such a thing as a man hath a Manual occupation or possession of as he hath of Lands Tenements and Rents whereof he may say in his Pleading That he was seized thereof in his Demesn as of Fee which he cannot say that hath only the Advowson of a Church because it lies not as the other in Manual occupation And therefore in the case
of Advowson of a Church he may only say that he was seized as of Fee and not in his Demesn as of Fee whether it be an Advowson in Gross or Appendant which Appendancy is held to be for the most part by Prescription and must relate to such things as are in their own nature of a perpetual continuance for which reason it is That Advowsons cannot be said to be Appendant to Rents Services and the like because such things are extinguishable And although an Advowson be not properly said to be a Demesn yet it may be Appendant to a Demesn as of Lands or things Corporeal and Perpetual and therefore as supposed not to a House of habitation meerly quatenus such yet to the Soyl whereon the House is erected whereby the Law which hath the clearest prospect of Casualties at a distance hath provided that the Advowson shall stand though the House fall but an Advowson Disappendant and in Gross which in man hath alone and not by reason of any other thing but severed from the Lands to which it was Appendant such an Advowson is exempt from divers prejudicial Incidents which the other viz. the Appendant cannot well avoid And where a Subject or Common person hath an Advowson Appendant to a Mannor and there be an Usurpation upon him by a Presentation made by a Stranger whose Clerk is in for Six months though this makes the Advowson of such Common person Disappendant to his Mannor yet it is otherwise in case of the King who may grant the Advowson notwithstanding such Usurpation for a man cannot put the King out of possession either by Presentation or Usurpation as hath been Adjudged Nor doth the King's Presentation by Lapse sever the Advowson from the Mannor or cause it to become disappendant as in Gawdy's Case against the Archbishop of Canterbury and Others was likewise Adjudged in which Case it was also said by Habard Chief Justice That neither doth a wrongful Collation of the Bishops make any Disappendancy nor any binding Plenarty against the true Patron but that he may not only bring his Quare Impedit when he please but also Present upon him seven years after Also whereas it was said before That an Advowson cannot be Appendant to things Extinguishable as to Rents Services and the like so it seems at the Common Law an Advowson in Possession cannot be Appendant to a Reversion expectant upon an Estate for life for the Case was The King seized of a Mannor with an Advowson Appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum una cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet the Advowson passed not Finally whereas also it hath been Adjudged as aforesaid that the King cannot be put out of possession either by Presentation or Usurpation this seems to refer only as to the Kings Advowson and not as to his present Presentation for the Opinion of Sir H. Hobart Chief Justice is That although the King may be dispossessed of his present Presentation he cannot be so of his Advowson and therefore he may still grant it notwithstanding the Usurpation as was Judged in a Writ of Error upon a Judgment given to the contrary between the King and Campion for the Vicarage of Newton Valence 23. A Donative in the Kings Gift may be with Cure of Souls as the Church of the Tower of London is a Donative in the Kings Gift with Cure as in the Case of Fletcher and Mackaller where Information was brought upon the Stat. 31 Eliz. of Simony for procuring him to be promoted to the Church of the Tower for money and per Curiam it well lies 24. The Queen hath the Advowson of the Vicarage of H. and grants the Vicarage to J. S. It was the Opinion of all the Justices that the Advowson passeth not for that the Vicarage is another thing than the Advowson of the Vicarage The Queen seized of a Mannor to which an Advowson was appendant granted the Mannor cum Advocatione Ecclesiae the Church being then void It was Adjudged the Avoidance did not pass but the Queen should Present pro hac vice And in the Queen and Hussie's Case it was Resolved That a double Presentation would not put the Queen out of possession if she hath Right And in Stephens and Clarks Case it was Resolved That the Grant of the next Avoidance to one during the Avoidance is void in Law CHAP. XX. Of Appropriations 1. The great Antiquity of Appropriations a Conjecture of their Original whether Charles Martell was the occasion thereof they were prohibited in England anciently by the Pope whether they can be otherwise than by the King or some Authority derived from him 2. How the End and use of Appropriations is changed at this day from what it was in the Original Institution thereof 3. Appropriators why called Proprietarii The care of R. 2. in making Provision for thé Vicar in case of Appropriations Requisites of Law to make an Appropriation 4. A further discovery of the Original use and ends of Appropriations and under what qualifications 5. Whether Appropriations were anciently grantable to Nunneries 6. Appropriations not now to be questioned as to their Original 7. A Vicarage endowed may be Appropriated but not to a Parson 8. Three considerable Points of Law resolved by the Justices touching Appropriations 9. Whether an Advowson may be Appropriated without a Succession Appropriations usually were to Corporations or Persons Spiritual 10. How a Church Appropriate may be disappropriated 11. In Appropriations the Patron and his Successors are perpetual Parsons 12. Whether an Appropriation of a Parsonage without endowment of the Vicarage be good Also whether an Appropriation may be made without the Kings License 1. IT is a question at this day undecided Whether Princes or Popes were the first Authors of Appropriations the practice whereof by each of them is of great Antiquity but whether in imitation of Charles Martell's Sacrilegious President the first by whom Tithes were ever violated in the Christian World is but a Supposition rather than any Assertion among Historians It was long since Traditionally Recorded in History that about the year 650. when the said Charles Martell Father of Pipin after King of France in defence of his Country against the Hunnes Gothes and Vandals had slain no less than 34500 of those Infidel Sarazens in one Battel he did not restore to such of the Clergy of France their Tithes as from whom under a fair pretence of supporting the charges of the War thereby he had upon a Promise of Restitution thereof so soon as the War should cease obtained the same but instead thereof gratified such of the Nobility as had assisted him in the War by the grant thereof to them and their Heirs for ever But whether this Sacriledge if it be true had
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
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
it to his proper use and there was not any Endowment of the Vicarage The Jury found the Statute of 4 H. 4. of Appropriations and of 27 H. 8. which gives Priories c. to the King Whether the Appropriation were good there being no Endowment of the Vicarage And whether the Appropriation without the King's License was good was the Question Resolved That whether the Appropriation be good or not cannot now be called in question but it shall be intended to be good and have all requisite Circumstances But in this Case because the Defendant claimeth per Praesentationem Regis ratione Lapsus Whereas the King if he had any Title to Present it was Jure Coronae the Presentment of the Plaintiff was utterly void and the Plaintiff had no Title who brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes CHAP. XXI Of Commendams 1. What a Commendam is or the Legal description thereof 2. The King may dispence with the holding of divers Benefices in Commendam notwithstanding the Canon of the Lateran Council against Pluralities 3. Three Degrees of Commendams by the Canon Law 4. A description of a Semestral and Temporary Commendatory 5. The provision the Pope made in granting Commendams certain Benefices in the Church of Rome never given in Commendams 6. What the Canon Law in Commendams ad Tempus or Perpetuo 7. The grand Case of a Commendam at the Common Law between Kiffin and Ascough and therein great variety of Learning touching that Subject 8. Several Considerations in Law touching Commendams 9. An Irish Case with great variety of Learning in reference to this Subject 1. COmmendam Ecclesia Commendata is a Benefice or Ecclesiastical Living which being void is commended to the charge and care of some sufficient Clerk to be supplied until it may be conveniently provided of a Pastor And this was the Original of what we now commonly call Commendams Durand de Benefic lib. 5. cap. 7. That person to whom the Church is thus Commended hath the Fruits and Profits thereof only for a certain time whereby the nature of the Church is not changed but is as a thing deposited in his hands as it were in Trust being concredited only with the care and custody thereof which may be revoked Thus when a Parson of a Parish is made the Bishop of a Diocess there is a Cession of his Benefice by the Promotion but if the King gives him power to retain his Benefice he shall continue Parson thereof and shall be said to hold it in Commendam So that it may properly be thus defined Commenda est Ecclesiae Custodia alicui Commissa in tempus gratia evidentis necessitatis utilitatis Gloss in verb. Commendare c. Nemo deinceps de Elect. in lib. 6. Andr. in dict Gloss For hereby the Bishop commits the care and custody of a Vacant Church to some one whom he Constitutes as a general Administrator thereof Corras de Sacerd. mater p. 1. c. 6. nu 3. dict c. Nemo for Commendare in this sense is no other than Deponere l. Publius ff Depositi l. Commendare ff de verb. Sign And he to whom the same is so committed is in the Law termed Commendatarius having the custody of a Vacant Church and the Fruits thereof only for a time and the Beneficium Commendatum we call Commendam Petrus Gregorius makes this Commendam of a Church to be on a double account viz. either in utilitatem Ecclesiae or Commendatarii In the former case he says the Commenda gives no Title to the Commendatary of the Benefice but is only a Custody or Trust which may be revoked and consequently repugnant to the nature of a Benefice which is Perpetual In the other Case the Benefice is held to be a Commenda made in utilitatem Commendatarii which he may hold and possess as long as he lives Petr. Greg. de Benef. cap. 10. nu 13. 2. By a Canon of the Lateran Council no person Ecclesiastical could hold Two Benefices with Cure of Souls simul semel but by the taking of a Second the former would be void Cons Later F. N. B. 34. L. Co. par 4. 75. Lindw Consil Provin de Praebend cap. Audistis yet might the King it seems by the Common Law notwithstanding that Canon grant Dispensations to hold divers Benefices in Commendam as at this day he may notwithstanding the Stat. of 21 H. 8. For the Statute of 25 H. 8. that takes away the Popes usurped power of granting Commendams c. in this Realm doth vest it in the Crown de jure as also doth the Statute of 1 Eliz. and from and under the Crown in the Archbishop of Canterbury his Commissaries c. And as heretofore the Pope did by Usurpation in this Realm so now de jure ex Regali Authoritate may the King grant unto a Consecrated Bishop a Dispensation Recipere obtinere Beneficium cum Cura animarum and to hold the same in Commendam 3. In the Case of Colt and Glover against the Bishop of Coventry and Lichfield according to Sir Hen. Hobart Lord Chief Justice out of the Canons Commendams are said to be of Three Degrees one Semestris another Perpetua vel ad vitam a third Intermedia or Diuturna sed Limitata and sometimes called Temporaria or Temporalis vel ad certum Temporis spatium Limitata Clem. v. Extra l. 3. de Praebendis c. 2. The Commenda Semestris did arise out of natural equity that in the time of the Patrons respite given him to Present the Church should not be without a Provisional Pastor which was a Law of Necessity agreeable to the Law of Nature But after the Lapse justly incurred the Commendam is to cease or then the Ordinary may Collate The Commenda Perpetua vel ad vitam is that which cannot be for a less time than for the life of the Commendatary absolute And the Commenda Intermedia diuturna or Temporalis vel ad certum temporis spatium Limitata is when a Commenda is to a person not for his life absolutely but so long as he shall be Bishop of such a place or the like Each of which Degrees of Commendams doth refer to the Commendam obtinere capere apprehendere A Dispensation Commendam recipere which shall make a Title ought to have three Incidents 1 It ought to be Recipere convertere in usus proprios 2 It ought to be ad utilitatem Ecclesiae vel Parsonae 3 It ought to have the Assent of the Patron And he that is but mere Commendatarius is Accountable to the Ordinary Vid. Case Evans and Ascough in Latch Rep. And not to the Commendam retinere which in truth is no Commendam though commonly so called but is only a Faculty of Retention and Continuation of the Benefice in the same person and state wherein it was notwithstanding something intervening as a Bishoprick or the
ad Familiae suae sustentationem convertere possit juribus sive institutis quibuscunque in contrarium non obstantibus Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland according to the Statute of 28 H. 8. c. 16. After this viz. 20 May An. 38 Eliz. Patrick Fynne the Incumbent died whereby the said Vicarage being void and so continuing void by the space of Six months whereby the Bishop had power to Collate thereunto by Lapse the said Bishop by virtue of the said Faculty or Dispensation adeptus est occupavit retinuit the said Vicarage perpetuae Commendae titulo and took the Fruits thereof to his own use until the 13 Febr. An. 1609. on which day the Bishop died After whose death the said Cyprian Horsefall having purchased the next Avoidance of that Vicarage Presented the said Wale who was Admitted Instituted and Inducted And afterwards the King Presents one Winch who being disturbed by the said Horsefall and Wale the King brought a Quare Impedit Whether the said Bishop when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation were thereby made compleat Incumbent thereof so as the Church being full of him no Title by Lapse could devolve to the King during the life of the Bishop was the Principal point moved and debated in this Case And in the Argument of this point which was argued at the Bar first by the Counsel at Common Law and then by two Advocates well versed in the Canon Law and at the Bench by all the Justices Two things were chiefly considered by those who argued for the Kings Clerk 1 Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty 2 What effect or operation that Faculty or Dispensation shall have by the Law As to the First they held clearly for Law That a Bishop by the Ancient Ecclesiastical Law of England may not hold another Benefice with Cure in his own Diocess and if he hath such Benefice before his promotion to the Bishoprick that it becomes void when he is created a Bishop And this is the Ancient Law of England as is often said in the Bishop of St. David's Case 11 H. 4. 41 Ed. 3. 5. b. agrees therewith The Reason is for that the Bishop cannot visit himself and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9. That if a Parson be made a Dean the Parsonage becomes void for that the Dignity and the Benefice are not compatible So no Ecclesiastical person by the Ancient Canons and Councils could have Two Benefices with Cure simul semel but the first would be void by taking asecond And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 8. cap. 13. which was made in Affirmance of the Ancient Law as appears in Holland's Case Co. par 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. N. Br. 34. l. And the Text of the Canon Law which is the proper Fountain of this Learning proves it fully Decretal de Praeben Dignit c. de multa Where it is said De multa providentia fuit in Lateranensi Concilio prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum instituta c. Praesenti Decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale Beneficium habebat eo sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. And with this agrees the Text in Decret Caus 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest So that it is evident that the Bishop could not by any Law have or retain that Benefice within his Diocess without a Dispensation which is Relaxatio Juris and permits that to be done which the Law had before prohibited It is to be observed That Commenda est quaedam provisio and therefore Gomez in Reg. de Idiomate saith That Commendare est Providere quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus And by the Canon Law the Consent of the Patron is requisite where a Benefice is given in Commendam Lib. 6. Decretal c. Nemo where the Gloss saith Ad Commendam vacabitur Patronus si qui alii ex tali Commenda laeduntur Also in Constit Othob de Commendis it is said expresly That Consensus Patroni ad Commendam requiritur The Canon Law holds these Commendams as very prejudicial and that in divers respects and therefore says That Experientia docet occasione Commendarum cultum Divinum minui Curam animarum negligi hospitalitatem Consuetam debitam non servari ruinis aedificia supponi c. 6. Extra cap Pastoris And whereas it is said of a Bishop That he is to be unius uxoris vir the Canonists expound it That he shall have but one Bishoprick or only one Cure for they say that per Commondam Bigamia contrahitur in Ecclesia Therefore it was well Resolved by that good and pious Bishop who when another Benefice was offered him to hold in Commendam said Absit ut cum Sponsa habeam Concubinam But for the clearer understanding of the nature and difference of these Commendams it is further to be considered That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius and therefore Decret caus 21. q. 1. Qui plures the Gloss there saith Commendare nihil aliud est quam deponere This Commenda or Commendatio Ecclesiae is divers according to the nature of the Church and the Limitation or Continuance of the Commenda for a Commenda may be of a Church either Curatae or non Curatae and it may be either Temporanea viz. for a time certain as for Six months or Perpetua viz. during the life of the Commendatary A Church with Cure may not be given in Commendam unless upon evident necessity or the benefit of the Church viz. to supply the Cure till provision be made of a sufficient Incumbent And therefore by the Council of Lions it was provided That a Parochial Church should not be given in Commendam nisi ex evidenti necessitate vel utilitate Ecclesiae quod talis Commenda ultra semestris temporis spatium non duraret quod secus factum fuerit sit irritum ipso jure c. 6. Decretal c. Nemo But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary vel ad mensam In that sense the Canonists say That Commenda is quasi comedenda quia Ecclesiae quae
3 ly if he Present not within the time by Law limited then the King shall Present for that he is Patron paramount of all the Benefices within his Realms as also because the King and his Progenitors Kings of England have had Authority time out of mind to determine the Right of Patronages in this Realm in their own Courts whence lies no Appeal to any Foreign pretended Power The Rosell Summist indeed makes more Gradations in this matter as from the Patron to the Chapter from the Chapter to the Bishop from the Bishop to the Metropolitan from the Metropolitan to the Patriarch and if none such then to the Pope Sed hoc nihil ad nos part of whose happiness is an Index Expurgatorius of the last recited Premisses And although the Law is That the Ordinary shall Present in case the Patron doth not within Six months yet the Law withal is That if the Patron Present before the Ordinary put in his Clerk the Patron of right shall enjoy his Presentation And if the Ordinary surcess his time limited he loses his power as to that Presentation specially if it be devolv'd to the King And when the Presentation is in the Metropolitan he shall put in the Clerk himself and not the Ordinary and so there is no default in the Ordinary though he Present not the Clerk of the Patron if his time be past in which case there is no remedy for the Patron against the Ordinary This matter of Lapse is of very ancient practice for Mich. 3. E. 1. B. Rot. 105. Staff the Bishop of Coventry and Lichfield pleaded a Collation by Lapse Authoritate Concilii against the Prior of Landa to the Church of Patingham And 6 E. 1. Rot. Paten membra 25. in a Quare non admisit by the Abbot of St. Mary Eborum against the Bishop of Norwich the Bishop made a Title by Lapse viz. That he Collated Authoritate Concilii post Lapsum semestre c. And there afterwards in the Judgment it is said Quia tempus semestre Authoritate Concilii non incipit versus Patronum nisi à tempore scientiae mortis c. Q. what Council is here meant or intended For P. 9 E. 1. B. Rot. 51. it appears that Lapse was given per Concilium Lugdunense post tempus semestre The like also in a Writ in the time of E. 2. cited by Sir Ed. Co. 6. in Catesby's Case 62 yet in Bracton the Lapsus temporis is de Constitutione Lateranensi And yet Britton fo 225. speaks of the Tempus Semestre or the Six months according to the Council of Lions But Mr. Selden in his Book of Tithes 390. says That the Manuscripts of Breton have Lateran for Lions and in fol. 388. holds That this Lapse was received in the Laws of this Realm out of the General Council of Lateran held in the year 25 H. 2. as the Learned Serjeant Roll observes in his Abridgment on this word of Lapse where he also cites Hovenden fo 326. asserting That among the Canons of the Council of Lateran under Alex. 3. held under Alex. 3. An. 1118. in the time of King Hen. 2. there is a Canon in these words or to this effect viz Cum vero Praebendas Ecclesias seu quaelibet Officia in aliqua Ecclesia vacare contigerit vel si etiam mod◠vacant non diu maneant in suspenso sed infra Sex menses personis quae digne administrare valeant conferantur si autem Episcopus ubi ad eum spectaverit conferre distulit per Capitulum Ordinetur And before the said Council the Patron was not limited to any time but might Present at his pleasure without any Lapse Touching other Presidents of great Antiquity relating to this Subject of Lapse the Reader is here referred to that Learned Serjeant Rolle in the forecited place of his Abridgment And although according to the Gradations aforesaid the Lapse devolves from the Patron to the Bishop from the Bishop to the Archbishop from the Archbishop to the King yet if after Lapse incurr to the Metropolitan and before Collation by him made the Patron Present he may Present to the Ordinary of the Diocess without Presenting to the Metropolitan Contra H. 41 El. B. R. per Popbam for thereby he seems to redeem his neglect But yet if Lapse devolve to the King and then the Inferiour Ordinary Collate by the Lapse and his Clerk be Instituted and Inducted it seems this doth not make a Plenarty against the King to put him to his Quare Impedit but he may notwithstanding Present and oust the Clerk of the Ordinary for when Lapse incurrs to the King it cannot be taken away by the Ordinary And then when the Ordinary Collates without good Title it makes not any Plenarty against him who hath the right as the King hath to Present for a Lapse incurring to the King is not like that which incurrs to the Metropolitan But if a Patron Present and his Clerk be Instituted and remain Eighteen months without Induction in that case there doth not any Lapse incurr to the King for the King hath not any Lapse but where the Ordinary might have had it before But if a Bishop dies whereby the Temporalties are in the Kings hands if during that time the Six months pass whereby a Lapse happens the King shall have it and not the Guardian of the Spiritualties Nor doth an Admittance of a Resignation by Fraud take away the Kings Title for in Comber's Case against the Bishop of Cicester where the Issue in a Quare Impedit was If S. R. by covin between him and C and R. did Resign into the hands of the said Bishop if the King hath Title of Lapse and a Resignation be made by fraud and one Admitted this shall not take away the Kings Title for if the Kings Title appear upon Record then shall go out a Writ for the King but otherwise it is upon matter of Evidence the King doth lose his Presentation as well by resignation as by death where he hath Title to Present by Lapse and doth not except the Resignation be by Fraud And in the Case of the Queen and the Archbishop of York and Bucks it was Resolved by the Justices That a Collation although double or treble cannot be an Usurpation against the King to put him out of an Advowson 2. The Canon Law allows Two months more to an Ecclesiastical than to a Lay-Patron ere the Lapse shall be incurr'd the former having by that Law Six months to Present the latter but Four Summ. Angel tit Jus Patronat § 16. So the Law of Scotland Pars Couns par 1. c. 2. We need not enquire into the Reason of that difference or disproportion let it suffice the Laity That it was the Canonists pleasure to have it so for reasons best known to their own interest the Common Law impartially levels them both to one and the same equal standard
than the Bishop himself or other Ordinary which also must be given to the Patron personally if he live in the same County and if in another County then Publication thereof in the Parish-Church and affixed on the Church-Door will serve turn if such Notice doth express in certain as it ought to do the cause of the Deprivation c. As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion the Ordinary is to give the Patron Notice thereof which Notice ought to be certain and particular Before Lapse can incurr against a Patron Notice of his Clerks being refused by the Ordinary for Insufficiency must be given to the person of the Patron if he may be found and it is not in that Case sufficient to fix an Intimation thereof on the Door of that Church to which he was Presented D. 16 El. 327. 7. b. Adjudged 5. It is said That a Lapse is not an Interest naturally as is the Patronage but a meer Trust in Law And if the Six months be incurred yet the Patrons Clerk shall be received if he be Presented before the Church be Filled by the Lapse Observe 7 Eliz Dyer 241. for it seems by that case that the Patron should Present against the Kings Lapse for he hath dammage but for half a year And Hob. Chief Justice says That a Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and lastly in the King the end of which Trust is to provide the Church of a Rector in default of the Patron and yet as for him and to his behoof And therefore as he cannot transfer his Trust to another so cannot he divert the thing wherewith he is entrusted to any other purpose Nor can a Lapse be granted over as a Grant of the next Lapse of such a Church neither before it fall nor after If the Lapse incurr and then the Ordinary die the King shall Present and not the Executors of the Ordinary For it is rather an Administration than an Interest and the King cannot have a Lapse but where the Ordinary might have had it before If an Infant-Patron Present not within Six months the Lapse incurrs The Law is the same as against a Feme-Covert that hath right to Present 33 E. 3. Qua. Impedit 46. 6. In the first Paragraph of this Chapter it is said That Tempus Semestre authoritate Concilii non incipit versus Patronos nisi à tempore Scientiae mortis personae that is of the last Incumbent And so Adjuged upon a Writ in the time of E. 2. and said to be per Legem Consuetudinem Regni hactenus usitatas As if the Incumbent die beyond Sea the Six months are not computed from the time of his death but from the time of the Patrons knowledge thereof and so it was Adjudged in a Quare non admisit between the Abbot of St. Mary Eborum and the Bishop of Norwich as aforesaid For the Six months are not reckoned from the death of the Last Incumbent but from the time the Patron might according to a reasonable Computation having regard to the distance of the place where he was at the time of the Incumbents death if he were within the Realm at that time have come to the knowledge thereof for he ought afterwards to take notice thereof at his peril and not before for that he was in some other County than that wherein the Church is and wherein the Incumbent died And if the Ordinary refuse a Clerk for that he is Criminous in that case the Patron shall not have Six months to Present after Notice thereof given him but of the Avoidance The Law is the same in case of Refusal by reason of Illiterature But if the Church be void by Resignation or Deprivation the Six months shall be computed from the time of Notice thereof given to the Patron and not from the time of the Avoidance Yet if the Ordinary refuse a Clerk because he is Criminous he is to give notice thereof to the Patron otherwise the Lapse doth not incurr So likewise if he be refused for Common Usury Simony Adultery or other Notorious Crime Notice thereof ought to be given to the Patron otherwise the Lapse doth not incurr A Lay Patron ought to have Notice ere the Lapse shall incurr in case his Clerk be refused for Illiterature otherwise as to a Spiritual Patron because the Law presumes he might well know of his insufficiency before he presented him And if the Bishop who took a Resignation dies the Lapse doth not incurr to his Successor without Notice to the Patron 7. In a Quare Impedit the Defendant pleaded That he demanded of J. S. the Presentee of the Plaintiff to see his Letters of Orders and he would not shew them and also demanded of him his Letters Missive or Testimonial testifying his ability and because he had not his Letters of Orders nor Letters Missive nor made any proof of them to the Bishop he desired leave of the Bishop to bring them who gave him a week and he went away and came not again and the Six months passed and the Bishop Collated by Lapse It was Adjudged in this Case That these were no Causes to stay the Admittance of the Clerk for the Clerk is not bound understand it only at Common Law to shew his Letters of Orders and Letters Missive to the Bishop but the Bishop must try him upon Examination 8. A Parson of the Church of S. of the value of Ten pound took a Second Benefice without a Dispensation and was Instituted and Inducted and continued so for twelve years The Patron presented J. S. who was Instituted and Inducted and so continued divers years and died The Queen presented the Defendant C. ratione Lapsus in the time of A. who was Instituted and Deducted B. the Patron brought a Quare Impedit against the Ordinary and C. It was held by the Justices That the Writ did well lie and that Tempus occurrit Reginae in this Case and that last Clerk should be removed And it was held by the Justices That upon a Recovery in a Quare Impedit any Incumbent that comes in pendente Lite should be removed 9. In the Case between Cumber and the Bishop of Chichester it was Resolved 1 If Title of Lapse accrues to the King and the Patron Presents yet the King may Present at any time as long as the Presentee is Parson but if he dies or Resigns before the King Presents he hath lost his Presentment 2. If the King hath Title by Lapse because a Parson hath taken a Second Benefice if the Parson dies or Resigns his First Benefice and the Patron Presents whose Presentee Resigns upon Covin and dies the King hath lost that Presentment CHAP. XXIII Of Collation Presentation and Nomination 1. What Collation is and how it differs from Presentation 2. Collation
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
not and at what time and when the Church shall be Judged to become void and when not all these appertain to the Kings Temporal Laws And in case it happen that the King Present not where of Right he may in such case the Ordinary may pro tempore depute a fit person to serve the Cure as in like case he may where there is a default or neglect in other Patrons to Present and do not 7. If the Patrons be Joynt-tenants or Tenants in Common of the Patronage and they vary or differ in their Presentations the Ordinary is not in that Case bound to Admir either of their Clerks nor him that is Presented by the Major part And if the Six months expire ere they agree the Ordinary may Present by the Lapse but within the Six months he may not for if so and the Patrons accord they may bring a Quare Impedit against him as a Disturber and remove his Clerk But in case the Patrons have the Patronage by Descent as Coparceners then is the Ordinary obliged to Admit the Clerk of the Eldest Sister who hath the precedency by Law in the Presentation if she so please after which and at the next Avoidance the next Sister shall Present and so in order by turn one Sister after another till all the Sisters or their Heirs have Presented and then the Eldest Sister shall Present again and this is called a Presenting by Turn which holdeth alwaies between Coparceners of an Advowson unless they agree to Present together or in some other manner by way of Composition which if so then the Agreement ought to hold good Yet here note That if after the death of the Common Ancestor the Church happening to be void the eldest Sister together with another of the Sisters Presents and the other Sisters severally and each in her own Name or joyntly and altogether In this case the Ordinary is not obliged to receive any of their Clerks but may suffer the Church to run into the Lapse for there is no obligation on the Ordinary to admit the Clerk of the Eldest Sister but where she Presents in her own Name only And in such case of variance or difference among the Patrons touching the Presentation the Church is not properly said Litigious obliging the Ordinary at his peril to direct a Writ to enquire de jure Patronatus which Writ lieth only where Two or more Present under pretence of several Titles but in this case all the Patrons present under one and the same Title for which reason the Ordinary may if he please suffer it to pass into the Lapse 8. Suppose a Patron presents to a Church void and before the Admission of the Clerk the Patron dies after his Executors before such Admission Present another Clerk Q. Whether the Archdeacon ought to receive the Clerk of the Testator or of the Executors The Opinion of the whole Court was That the Bishop should have Election therein And in case an Agreement be made by way of Composition between divers claiming one Advowson and Enrolled or by Fine that one shall successively after another Present in such an order certain and after one hath Presented he to whom at the next Avoidance the Second Presentation doth belong is disturbed by any that was party to the said Fine or by some other in his stead In such case it is provided That such so disturbed shall not be put to the Quare Impedit but their resort to the Roll or Fine shall be sufficient where if the Concord or Agreement be found the Sheriff shall be commanded That he give knowledge to the Disturber that he shew by such a time certain as fifteen days or three weeks if he can alledge any thing wherefore the party that is disturbed ought not to Present and if he appear not or appearing alledge nothing sufficient in Bar he shall recover his Presentation with Dammages 9. In the Case of Evans and Ascough it was the Opinion of Doderidge That a Bishop hath no more in a Church by Election than a Parson hath by Presentation And that if a man Present to a Church yet any time before Institution he may revoke it and Present another and if in that case the Bishop will Institute the First a Quare Impedit will lie against him But if the Patron present one and he be Admitted by the Ordinary he cannot in that case vary from his Presentation as was also held by Doderidge in Stoke's Case against Styles where he further said That it was out of all question at the Common Law that before Admission by the Ordinary the Lay-Patron may revoke his Presentation because a Presentation is no other than a Commendation which may be by word only And if the Case be that one hath the Nomination another the Presentation the Presentation and Nomination are all one It was then said by Whitlock That in the Canon Law it is allowed to a Lay-man to vary but not to a Spiritual man but at the Common Law it is all one Doderidge and Jones seemed to give the Reason thereof when they said That it may be intended that a Lay-man cannot at first so well judge or is able to discern of the sufficiency of the party Presented but a Spiritual-man may Quaere If after Admission of the Patrons Presentee he doth afterwards again Present another to the Ordinary and the Ordinary Admit Institute and Induct the last Presentee what Remedy for the first So if a Spiritual Person change his Presentation by the consent of the Ordinary what remedy for the First after Induction of the Second 10. To the same purpose with the premisses is that which is Reported in Stoke's Case against Sykes the Case is this viz. A Lay-Patron having the next Avoidance of a Church after the death of one Stokes Father of the Plaintiff then Incumbent of the said Church after the Fathers death presented Stokes's Son whom the Bishop refused for that by the Canon Law Filius Patri non potest in Ecclesia succedere Whereupon the Patron presented Sykes And now Stokes obtains a Dispensation Non obstante the Canon Notwithstanding the Ordinary doth Institute Sykes and causeth him to be Inducted Whereupon Stokes doth Sue Sykes and the Ordinary in the Delegates and now Banks prays a Prohibition and by all the Justices it was granted And Jones said That he had known it to be Thrice so granted in the like Case viz. in the time of Justice Gawdy as also in the time of Justice Coke in the Common Pleas where both Parsons claimed by one Patron But Doderidge there held That the Canon before-mentioned doth not hold in this Church and so said Doderidge was the Opinion of a Learned Civilian So by the Canon Law a man cannot have that Woman in Marriage whom he had in Avowry before yet that Canon doth not hold in our Church Doderidge said that the Civilians hold That a Lay-Patron cannot revoke
his Presentation but he may cumulando variare and so the Ordinary hath Election to Institute which of them he will but that a Spiritual Patron cannot vary at all But he said that at the Common Law it is out of question That a Patron before Institution may revoke his Presentation And if the Patron present one and the Ordinary admit him but will not give him Institution Duplex Quaerela lies against the Ordinary to enforce him to do his duty But if both Parsons claim by one Patron and the one sues a Duplex Quaerela a Prohibition lies not before Institution But Jones denied it and said That it had been Resolved to the contrary Doderidge said That in that case the Induction was pendente Lite And in Calvert's Case against Kitchin it was said that they King may revoke his Presentation and by the same reason may Present another before his Presentee is Instituted for proof whereof it was said That a Common person may recall his Presentation before the Institution c. for which was vouched the Book of 31 E. 1. tit Quare Impedit 185. the Abbot of Leicesters Case although that Dyer citing it 12 Eliz. fo 292. conceives the Book contrary but it seems to be in reason that the Law is clear That a Lay-Patron may change although that a Spiritual Patron cannot and the reason is as aforesaid because a Lay-person did not know his Sufficiency perhaps at the first but a Spiritual person by intendment may inform himself thereof well enough and therefore was vouched 18 H. 7. and 1 H. 8. Kellway's Reports which plainly proves that diversity And by the 19 Eliz. fo 360. in Coleshil's Case it is said That when the King hath Presented a Repeal by him ought not to be admitted after Institution And by Dyer 339. in Yatton's Case the King may Repeal his Presentation by a new Presentation without mention made of the former except that the Second Presentation be obtained by Fraud Also the King may Present by Paroll as was said by Sir Ed. Coke in the Lord Windsors Case and as appears by 17 Eliz. Dyer as was vouched by Bromley Baron in the foresaid Case of Calvert against Kitchin where it was said by Altham Baron That by the Kings death his Presentation determines understand it before Institution and so it is said in 34 E. 3. 8. tit Quare Impedit 11. That a Presentment made by a Bishop becomes null and void by his death And in 38 Ed. 3. 3. if a Bishop Present and die before c. the King shall Present anew 11. Nomination is a power that by virtue of a Mannor or otherwise a man hath to Nominate or Appoint a Clerk to a Patron of a Benefice by him to be Presented to the Ordinary for the same where Note 1 That it may be in right of a Mannor or otherwise 2 That the Clerk Nominated ought to be a person fit able and worthy 3 That it may be to a Parsonage Vicarage or other Spiritual promotion 4 That it ought to be to another than the Ordinary which other shall present him to the Ordinary And if one hath a Right to have the Nomination of a Clerk to a Benefice and another Disturbs him he cannot have a Quare Impedit ipsum Nominare ad Ecclesiam but the Writ shall be Quod permittat ipsum Praesentare And the Count shall be That of Right he ought to Name a Clerk to such as one who ought to Present him to the Bishop and that a Stranger doth disturb him of his Nomination and in case he doth Recover the Judgment shall be Quod Episcopus admittat Clericum ad Nominationem suam 12. If A. B. doth Grant unto J. S. That he shall Name a Clerk to him to the Church of C. when it shall become void and that A. B. shall present unto the Bishop the Clerk which J. S. shall Nominate to him in that case the Presentation is in J. S. and he shall have a Quare Impedit for all the Profit is in him and the Grant of the Nomination and Presentation is all one But if A. B. doth Grant unto J. S. That he shall Nominate to him Two Clerks whereof A. B. shall Present one in that case the Presentation is not given to J. S. the Grantee because it is in the Election of A. B. which of the Two shall have the Benefice And this was the Opinion of the Justices in Smith and Clayton's Case 13. If A. hath the Nomination to an Advowson and B. the Presentation if A. Nominates C. for his Clerk and B. that should present C. doth present D. for the Clerk A. that hath the Nomination shall have a Quare Impedit and the Writ shall be Quod permittat eum Praesentare albeit A. had but the Nomination otherwise he should be without remedy for in such cases where the party can otherwise have no Right done him the Law will admit such Writ albeit the words therein be improper And if he who had but a Nomination corruptly agree to make a Presentation or Nomination this Nomination shall be forfeited to the King within the Statute of 31 Eliz. cap. 6. as was said in Calvert's Case against Kitchin and Parkinson and as it is said in Plowden in Hare and Bickley's Case He who hath the Nomination hath the effect of the Advowson Yet as in the said Case of Calvert this diversity seems to be good That if A. hath the Presentation and B. the Nomination to a Benefice and the Presentor upon a Corrupt agreement make a Presentation unknown to the Nominator here the Nominator shall not be prejudiced within the Statute of 31 Eliz. cap. 6. 14. In Green's Case vouched by Atthowe Serjeant in the Case of the King against the Archbishop of Canterbury and one Thomas Prust upon a Quare Impedit brought by the King it is said That if the Bishop Collate before the Six months incurr the Collatee is Incumbent but the Patron may Present at any time aster for that fills the Church but not against the Patron and hinders that no Lapse may incurr to another In Sir Hen. Gawdy's Case for the Church of W. the Church there became void and within fourteen daies after the King Presented one to it jure Prerogativae the Presentee continues possession above thirty years and then the Mannor and the Advowson came to Sir Henry Gawdy the Church is void and the King Presents again and was disturbed by Sir Henry For that the King brought a Quare Impedit and Adjudged That the Presentation of the King within the Six months was not an Usurpation But if he had Presented in his own right there should have been an Usurpation When a Title by Lapse is in the King if any Present the King may remove him during his life by Quare Impedit All this appears by Baskervil's Case but if the Incumbent die the term of the King is gone and if
Law which will not be good if the Institution were not good All which was also the Opinion of the Court in the Case aforesaid for if the Question be whether Parson or no Parson which comprehends Induction it is Triable at the Common Law And although by the Institution the Church if Full against all persons save the King yet he is not compleat Parson till Induction for though he be admitted ad Officium by the Institution yet he is not entitled ad Beneficium till Induction 18. In an Ejectione Firmae brought by the Lessee of Rone Incumbent of the Church of D. it was found by Special Verdict that the King was the true Patron and that Wingfield entered a Coveat in vita Incumbentis he then lying in Extremis scil Caveat Episcopus nè quis admittatur c. nisi Convocatus the said Wingfield the Incumbent dies Naunton a Stranger Presents one Morgan who is Admitted and Instituted afterwards the said Wingfield Presents one Glover who is Instituted and Inducted and afterwards the said Rone procures a Presentation from the King who was Instituted and Inducted And then it came in◠question in the Ecclesiastical Court who had the best Right and there Sentence was given That the First Institution was Irrita Vacua Inanis by reason of the Caveat and then the Church being Full of the Second Incumbent the King was put out of possession and so his Presentation void But it was Adjudged and Resolved by all the Court for Rone For 1 it was Resolved That this Caveat was void because it was in the life of the Incumbent According to the Common Law if a Caveat be entered with the Bishop and he grant Institution afterwards yet it is not void After a Caveat entered Institution is not void by the Common Law Pasch 13 Jac. B. R. Hitching vers Glover Rol. Rep. Cro. par 2. 2. The Church upon the Institution of Morgan was Full against all but the King and so Agreed many times in the Books and then the Presentation of Glover was void by reason of the Super-institution and therefore no obstacle in the way to hinder the Presentation of Rone and therefore Rone had good Right And if the Second Institution be void the Sentence cannot make it good for the Ecclesiastical Court ought to take notice of the Common Law which saith That Ecclesia est plena consulta upon the Institution and the person hath thereby Curam animarum And as Doderidge Justice said He hath by it Officium but Beneficium comes by the Induction And although by the Ecclesiastical Law the Institution may be disannull'd by Sentence yet as Lindwood saith Aliter est in Angl. And Doderidge put a Case out of Dr. Student lib. 2. If a man Devise a Sum of Money to be paid to J. S. when he comes to Full age and he after sue for it in the Spiritual Court they ought to take notice of the Time of Full age as it is used by the Common Law viz. 21. and not of the time of Full age as it is in the Civil Law viz. 25. So in this case for when these Two Laws meet together the Common Law ought to be preferred And when the Parson hath Institution the Archdeacon ought to give him Induction Vid. Dyer 293. Bedingfield's Case cited by Haughton to accord with this Case 19. By the Court That if an Archdeacon make a general Mandate for the Induction of a Parson viz. Vnivers personis Vicariis Clericis Literatis infra Archidiaconat meum ubicunque Constitut That if a Minister or a Preacher who is not resident within the Archdeaconry makes the Induction yet it is good And the Opinion of four Doctors of the Civil Law was shewn in the Court accordingly upon a Special Verdict 21. In the Case of Strange against Foote the sole Point upon the Special Verdict was If one Prideoux being Admitted and Instituted to a Prebendary with the Cure 4 Eliz. be being but Nine years of age notwithstanding the Statute it is meerly void Note 4 H. 6. 3. That if a Feme who is an Infant under 14 years hath issue it is a Bastard 21. It is said at the Common Law that after Induction the Admission and Institution ought not to be drawn into question in the Ecclesiastical Court for they say That after Induction the Ecclesiastical Law may not call into question the Institution That by Institution the Church is full against Common persons but not against the King and that by Induction the King may be put out of possession And in the Case between Rowrth and the Bishop of Chester it was Resolved That after an Induction an Institution is not to be examined in the Ecclesiastical Court but by a Quare Impedit only But yet the Justices if they see cause may write to the Bishop to Certifie concerning the Institution 22. Two Patrons pretended Title to Present the one Presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after he there obtained Institution and Induction by the Archbishop Afterwards the Inferior Bishop Instituted and Inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction as was there said for that would determine the Incumbency which is triable at Common Law 23. In a Prohibition prayed to the Ecclesiastical Court the Case appeared to be this viz. Holt was Presented Instituted and Inducted to the Parish-Church of Storinton afterwards Dr. Wickham draws him into the Ecclesiastical Court questioning of him for some matters as touching the validity of his Induction and upon this a Prohibition was by him prayed Williams Justice A Prohibition here in this Case ought to be granted this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in question with the determination of which they ought not to intermeddle also matter of Induction and the validity thereof is determinable at the Common Law and not in the Ecclesiastical Court and therefore a Prohibition ought to be granted and the whole Court agreed with him herein and therefore by the Rule of the Court a Prohibition in this Case was granted CHAP. XXV Of Avoidance and Next Avoidance as also of Cession 1. What Avoidance is how Twofold 2. The difference in Law between Avoidance and next Avoidance 3. How many waies Avoidanee may happen what Next Avoidance is The word Avoidance falls under a double Acceptation in Law 4. The Next Avoidance may not be granted by a Letter it cannot be granted but by Deed. 5. Grant of a Next Avoidance by the Son Living the Father Tenant in Tail is void 6. How Avoidance may be according to the Canon Law which
unless he be qualified for Plurality Or if a Dean be made a Bishop yea though a Dean or Parson in England be made a Bishop in Ireland as aforesaid his Benefice becomes void as was Resolved in Evans and Askwith's Case for that the Constitution or Council which makes it void is general and not limited to any place And so it was also Resolved 3 E. 3. Fitz. Trial and so adjudged 21 Jac. C. B. in the Case between Woodley and the Bishop of Exon and Manwaring 12. The case may so happen that albeit a man having a Benefice with Cure of Souls accept another and be Instituted and Inducted into the same yet his First Benefice shall not be void by Cession though the Benefices be incompatible though there be no Dispensation in the case and although himself be not otherwise qualified for Pluralities For it hath been Resolved That if a man having one Benefice accept another and be Instituted and Inducted into the Second and then read not his Articles that yet the First Benefice voids not by Cession because the Second is as not taken Notwithstanding it cannot be denied but that where a man having a Benefice with Cure of Souls above the value of Eight pounds per Ann. doth take another with Cure and is thereto Admitted Instituted and Inducted the First Benefice without Dispensation becomes void as in the Case of the King against George Lord Archbishop of Canterbury In which Case it was held That the Church was absolutely void in facto jure by taking of a Second Benefice and that by the express words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto jure quoad the Patron and all others Sed Q. whether void as to an Usurper for in some cases a Benefice may be void as to some persons and not void as to others As in the Case of Simony whereby as well as by Cession a Church becomes void yet in that case although it be void to all men quorum interest to the King and his Incumbent and all that claim under him and to the Parishioners to the Ordinary and to the like yet according to Sir Hen. Hobart Chief Justice it is not void to an Usurper for a man without Right cannot Present unto it as to a Church void nor the Ordinary so discharge himself if he receive the Clerk of an Usurper for he is none of them quorum interest Pasch 14 Jac. Rot. 1026. Case of Winchcombe against the Bishop of Winchester and Rich. Pulleston Hob. Rep. 13. If the Next Avoidance be granted to Three persons and after the Church become void and then Two of the Three Present the Third Grantee being a Clerk in this case the Presentation is good and the Bishop may not refuse him inasmuch as all Three were Joynt-tenants thereof by the Grant and only Two of them joyn in the Presentment for that the Third person cannot Present himself but if only one of these Three Grantees Present the Third the Bishop hath power to refuse him And if an Incumbent having the Advowson do Devise the Next Avoidance it seems it is good Trin. 13 Jac. B. R. Harris vers Austen Rol. Rep. 14. In Holland's Case it was Resolved That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure accept another with Cure the First was void but this was no Avoidance by the Common Law but by Constitution of the Pope of which the Patron might take Notice if he would and Present without Deprivation But because the Avoidance accrued by the Ecclesiastical Law no Lapse incurred without Notice as upon a Deprivation or Resignation so that the Church was void for the benefit of the Prtron not for his disadvantage But now if the First Benefice be of the value of Eight pounds per annum the Patron at his peril ought to Present for to an Avoidance by Parliament every one is party but if not of Eight pounds it is void by the Ecclesiastical Law of which he needs not take Notice 15. In a Quare Impedit The Defendant said A. was seized of the Advowson of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance and that J. S. died and made his Executor who Presented the Plantiff to the Church being void Upon Non concessit it was found That A. granted to J. S. durante vita ipsius J. S. primam proximam Advocationem and that he died before the Church became void Whether this was an absolute Grant of the Next Avoidance as is pretended was the Question And Resolved it was not but it is limited to him to Present to the Advowson if it becomes void during his life and not that otherwise it should go to his Executors and therefore it was Adjudged against the Defendant 16. The Incumbent of a Church purchased the Advowson thereof in Fee and devised that his Executor should Present after his decease and devised the Inheritance to another in Fee It was said the devise of the Next Avoidance was void because when his Will should take effect the Church was instantly void But the Court held the devise was good for the Law is so and it shall be good according to the intent of the party expressed in his will The Grant of the Next Avoidance during the Avoidance is void in Law Steephens and Clark's Case More 's Reports 17. In a Quare Impedit the Case was The Corporation of B. being seized of an Advowson granted the Next Avoidance to J. S. and afterward granted primam proximam Advocationem to the Earl of B. who granted it to the Plaintiff The Church became void J. S. Presented his Clerk who was Inducted and then the Church became void again It was Resolved that the Second Grant was void so as the Plaintiff had no Title for when he had granted primam proximam Advocationem to one he had not Authority to grant it after to another but if the First Grant had been lost so as it could not have been pleaded there perhaps the Second Grand had been good 18. In a Quare Impedit the Case was H. being Incumbent of a Church was Created a Bishop in Ireland and the Queen Presented the Defendant It was the Opinion of the Justices That this Creating of the Incumbent a Bishop in Ireland was a good cause of Avoidance and that the Queen should have it by her Prerogative But if the Queen doth not take the benefit of the First Avoidance but suffers a Stranger to Present and the Presentee dies she may not have Prerogative to Present to the Second Avoidance 19. The Next Avoidance of a Church was granted to A. and B. A. releases to B. and after the Church became void It was Adjudged in this Case That B. may Present and upon Disturbance have a Quare Impedit in his own Name
the First were vnder the annual value of Eight pounds or sine cura And what persons are qualified either for the Granting or receiving Pluralities appears by the Stat. of 21 H. 8. c. 13. In which there is not any limitation of Number of Chaplains to be retained by the King Queen and Prince and other the King's Children for which reason they may retain as many Chaplains as they please and each of them qualificable by a Dispensation for Plurality But if either of the King's Chaplains be Sworn of his Majesties most Honourable Privy Council such may purchase a Dispensation to hold Three Benefices with Cure of Souls The Persons specially qualified by Dispensations for Pluralities are either 1 Such as are retained as Chaplains to Persons of Honour Or 2 Such as are qualified thereto in respect of their Birth Or 3 Such as are dignified with some certain Degrees in either of the Universities of this Kingdom In reference to the first of these every Archbishop and Duke may have Six Chaplains Marquess and Earl Five every Viscount and other Bishop Four Lord Chancellor Three Knight of the Garter Three Baron Three Dutchess Marchioness Countess and Baroness being Widows Two Treasurer and Controller of the Kings House Two the Kings Secretary and Dean of his Chappel the Kings Almner and Master of the Rolls Two the Chief Justice of the Kings Bench and Warden of the Cinque Ports One In reference to the Second qualification viz. By Birth the Brothers and Sons of all Temporal Lords and of Knights born in Wedlock may purchase Dispensations to hold Two Parsonages c. with Cure of Souls In reference to the Third all Doctors and Batchelors of Divinity Doctors and Batchelors of Law Presented to any of these Degrees not by grace only but by any of the Universities of this Realm may purchase and hold as aforesaid Vid. Statute 21 H. 8. cap. 13. 4. Although by the Letter of which Act the First Living is not void until Induction into the Second the words being If the party be Instituted and Inducted in possession of the Second Living that then the first shall be void yet to avoid the great inconveniency as Sir Simon Degge observes in his Parsons Counsellor that otherwise would ensue it has been held That the First Living is void upon the bare Institution into the Second and so it should seem the Law was before the making of this Act where the party had no Dispensation The sufficiency of qualification for Plurality relates as well to the Dispensation as to the Person for if the Dispensation after its being had from the Master of the Faculties be not confirmed under the Great Seal of England other qualifications will not suffice Nor are the supernumerary Chaplains of any person of Honour retained by him above the Number allowed by the Statute qualified for Plurality Co. 4. 90. B. versus the Bishop of Gloucester and Saveacre Anders More 561. The death attainder degradation or displacing of a Chaplains Lord or his discharging his Chaplain unqualifies him for a Plurality of incompatible Livings otherwise of the Chaplain of a Dutchess Marchioness Countess or Baroness in case of After-marriage A double Capacity in one and the same person of Honour to qualifie his Chaplains doth but capacitate him to qualifie his Number of Chaplains only according to his best qualification A Person of Honour having retained his full Number of Chaplains and discharging them after their preferment may not during their Lives qualifie others 5. The Question was formerly put Whether the 8 l. yearly value intentioned in the Statute of 21 H. 8. c. 13. shall be understood according to the Taxed value in the Kings Books or according to the very true value of the Benefice Mr. Hughes in his Parsons Law reports a Case in King James's time wherein this Question was debated pro con the Judges equally divided the Case for difficulty and variance of Opinion adjourned and afterwards as he there speaks de auditu by order of the King compounded In that Case Two Presidents it seems were shewed in proof of that Opinion which inclined to have it taken according to the very value of the Benefice notwithstanding when the same point came again several years after into question the Court then seemed to incline against the Opinion which was for the very value of the Benefice But says he the Case was not then resolved or adjudged but remaineth a Question undetermined Quaere the Law Foster and Walmesley Justices held the value should be taken according to the Taxed value as in the Book of First-Fruits but Warburton and Coke Chief Justice Contra. It hath been Resolved in Holland's Case and likewise in Digby's Case Rep. 4. and often before since the Council of Lateran An. Do. 1215. That if a man have a Benefice with Cure whatever the value be and is Admitted and Instituted into another Benefice with Cure of what value soever having no Qualification or Dispensation the First Benefice is ipso facto so void that the Patron may Present another to it if he will But if the Patron will not Present then if under the value no Lapse shall incurr untill Deprivation of the first Benefice and Notice But if of the value of eight pounds or above the Patron at his peril must Present within Six months by the Statute of 21 H. 8. And in that Case of Digby it was adjudged That when a man hath a Benefice with Cure above eight pounds and afterwards taketh another with Cure and is Presented and Instituted and before Induction procures the Letters of Dispensation that this Dispensation comes too late For by the Institution Ecclesia plena consulta existit against all persons except the King for every Rectory consisteth upon Spiritualty and Temporalty And as to the Spiritualty viz. Cura animarum he is compleat Parson by the Institution for when the Bishop upon Examination had admitteth him able then he doth Institute him and saith Instituo te ad tale Beneficium habere curam animarum of such a Parish accipe curam tuam c. Vide 33 H. 6. 13. But touching the Temporalties as the Glebe-Lands c. he hath no Freehold in them until Induction For by the General Council of Lateran Anno Dom. 1215. it appeareth That by the acceptance of two Benefices the first is void Aperto jure for upon this Council are the Books of the Common Law in this Caâ—e founded And it was in this Case Resolved That this was an Acceptance of a Benefice cum Cura within the Statute of 21 H. 8. Institution is an Acceptance by the Common Law A man was Presented to a Church with a Vicarage endowed the Parson accepted of a Presentation to the Vicarage without Dispensation Whether this were a Plurality by the Canon Law and by the Statute of 21 H. 8. was the Question Hobart Chief Justice was of Opinion That
it shall be lawful for the King's Chaplains to whom it shall please the King to give any Benefices or Spiritual Promotions to what number soever it be to accept and receive the same without incurring the danger penalty and forfeiture in this Statute comprised upon which the Question was Whether by this last Proviso a Chaplain of the King having a Benefice with Cure above the value of eight pounds per Annum of the Presentation of a Common person might accept another Benefice with Cure over the value of eight pounds also of the Presentation of the King without Dispensationâ— The words of the Statute by which the first Church is made void are That if any Parson having one Benefice with Cure of Souls being of the yearly value of eight pounds or above accept or take any other with Cure of Souls and be Instituted and Inducted into possession of the same that then and immediately after such possession had thereof the first Benefice â—hall be adjudged in the Law to be void Vide Holland's Case 4 Co. 75. â— This Case was not argued but the point only opened by Dodesidge Serjeant of the King for the Plaintiff 17. A. was Parson of M. which was a Benefice with Cure of the value of eight pounds and was Chaplain to the Earl of S. and obtained a Dispensation to accept of another Benefice modo sit within Ten miles of the former which was confirmed under the Great Seal He accepted of another Benefice Seventeen miles distant from the first and was Instituted and Inducted both Benefices being within the Diocess of Lincoln The Archbishop in his Visitation Inhibited the Bishop of Lincoln not to execute any Jurisdiction during his Visitation It was found that the Patron had neglected to present to the first Benefice within the Six months and that the Bishop of Lincoln within the second Six months Collated one to the first Benefice who was Admitted and Inducted The points were Whether 1 Si modo was a Condition in this Licence and made the first Benefice void when he took the Second 2 Whether the Bishop Collating during the time of the Archbishop's Visitation and after his Inhibition was good Resolved That in the principal Case Si modo should not be taken for a Condition and that the Benefice should not be void quoad the Patron as the taking of a second Benefice is by the Statute of 21 H. 8. and then the second point of the Collation by the Bishop in the time of the Visitation and also the Inhibition will not be material 18. Quare Impedit pretending the Church void for Plurality The Defendant said he was Chaplain to the Lord M. and pleaded a Dispensation from the Archbishop of Canterbury and Confirmation thereof In the Letters of Dispensation the words were mentioning the two Benefice to be of small value unimus anneximus incorporamus the second Benefice to the first without the word of Dispensamus thereof The Court held it a sufficient Dispensation for it is not of necessity to have the word Dispensamus and if the Circumstances prove it it is sufficient 19. In the Case between Whetstone and Higford it was held by the Justices That if the Queen retains a Chaplain by word only yet he is such a person as may have a Plurality within the Statute of 21 H. 8. of Pluralities and is a person able to make a Lease And in a Quare Impedit it was Resolved That if there be two Parsons of one Church and each of them hath the entire Cure of the Parish and both the Benefices be of the value of eight pounds and the one dieth and the other be presented it is a Plurality within the Statute of 21 H. 8. 20. The Countess of K. being a Widow retained two Chaplains and after retained a third the third purchased a Dispensation to have two Benefices with Cure and he was advanced accordingly whereof the first was above the value of eight pounds It was adjudged in this Case and afterwards affirmed in a Writ of Error That he was not lawfully qualified within the Statute of 21 H. 8. by which the first Benefice by acceptance of a second was void and that the Title did accrue to the Queen to present for it was Resolved That the Statute gives power to a Countess to retain two Chaplains and no more and when the Statute is executed she cannot retain a third Chaplain and the Retainer of the third cannot divest the capacity of Dispensation which was vested by her Retainer in the two first Chaplains 21. A Parson having a Benefice of the value of eight pounds took a second Benefice without Dispensation being above the value of eight pounds The Court took no consideration of the Statute of 26 H. 8. and the value there mentioned but regarded only the true value of the Benefice 22. For Title to an Avoidance the Statute of 21 H. 8. was pleaded touching the taking of a second Benefice with Cure Issue was upon the Induction by which it seemed to be admitted That Admission and Institution did not make the first Benefice void without Induction 23. Quare Impedit brought the Defendant pleaded the Statute of 21 H. 8. cap. 13. of Pluralities that the last Incumbent had a Benefice with Cure of the value of eight pounds and took another Benefice and was Inducted 1 Eliz. upon which the Queen did present the Defendant by Lapse The Plaintiff shewed the Proviso in the Statute of 25 H. 8. cap. 21. That Chaplains qualified might purchase Dispensations and take two Benefices and that 1 Eliz. before the Parliament he purchased a Dispensation from the Pope and after he took the second Benefice and died The Question was Whether before the Statute of 25 H. 8. the Pope might grant Dispensations It was Resolved he could not for that the King 's of England had been Sovereigns within their Realms of the Spiritualties and the Justices held That the Dispensation in question was made 1 Eliz and so out of the Statute of 25 H. 8. cap. 21. and that this Dispensation to retain a second Benefice was against the Statute of 21 H. 8. cap. 13. 24. The Countess of K. had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was Adjudged he was lawful Chaplain for the Patent is not of necessity but only in case where he hath cause to shew it and here he hath no cause to shew it because her Retainer was good without a Patent 25. The Case between Robins Gerrard and Prince was in effect this viz. A man is Admitted Instituted and Inducted into a Benefice with Cure of the value of eight pounds and afterwards the King presents him to the Church of D. which is a Benefice with Cure and he is Admitted and Instituted The Archbishop grants him Letters of Dispensation for Plurality which Letter
as a Lay-Fee by the Induction If a Town erect a Common School and allow Maintenance to the Schoolmaster the Bishop may not remove him and put in another at his pleasure But if he be a Recusant he may remove him by the Statute of 23 Eliz. cap. 1. 13. Although an Incumbent be deprivable yet the Patron cannot Present another until he be deprived for till then the Church is not void Also if the Visitor by the Kings Command return into Chancery good matter for deprivation of the King's Clerk yet the King cannot Present another to the Church until he be deprived Contra 17 E. 3. 59. b. 14. Where Two Incumbents were of one Church one sued the other in the Ecclesiastical Court to be deprived for not Reading the Articles and giving his Assent to them according to the Statute of 13 Eliz. The issue was whether he gave his Assent the Jury found he read the Articles and said I give my assent to them as far as they agree with the Word of God And it was Adjudged That it is not such an unfeigned Assent as is within the intent of the Statute 15. In a Prohibition the Case was J. S. seized in Fee of the Advowson of the Church of C. Presented thereunto D. who was Instituted and Inducted but did not read the Articles according to the Statute of 13 Eliz. Afterwards came the General Pardon of 18 Eliz. Afterwards D. was deprived by Sentence for not Reading the Articles he Appealed and depending the Appeal B. the Plaintiff obtained a Presentation from the Queen and was Instituted and Inducted D. died and he that had the Advowson Presented R. the other Defendant who sued in the Ecclesiastical Court to be Admitted It was Resolved That the Church became void presently by the not Reading of the Articles and there needed not any Deprivation and the Pardon in this case works nothing for the Church being once void for not Reading the Articles he cannot by the Pardon be restored and the Pardon will not reach to it for the punishment is to lose his Benefice Adjudged the Prohibition to stand But if a man be deprived for an offence done Tempore Parliamenti and the Offence be after pardoned by the same Parliament and then the Parliament endeth In this case the Deprivation is void in it self and the party need not sue to reverse it for the Parliament relateth to the First day thereof As was Resolved in Foxe's Case 16. In a Quare Impedit the Case was That L. had Two Presentations and W. the Third of Inheritance perpetual L. Presented P. who was Instituted and Inducted and afterwards in the time of Queen Mary was deprived because a Married man wherefore he again Presented D. who was Inducted Afterwards P. was restored with Declaration that he had good Title Afterwards P. died W. Presented H. L. brought the Quare Impedit It was Adjudged for the Plaintiff because the Sentence declaratory for the Restitution made a Nullity in the Deprivation and so avoided the Incumbency of D. and so L. had good Title to Present at his Second Turn and W. had no Title to Present as yet 17. In Hornigold's Case against Brian it was said That if a Judgment of Deprivation be given in the Ecclesiastical Court against a Parson for his Benefice if presently upon this Judgment he makes his Appeal the Church is not void but he remains Parson during all the time of this Appeal for if by this he doth reverse the Judgment he shall need no new Institution and Induction As if a Judgment be given of a Divorce in the Ecclesiastical Court and this is after reversed by an Appeal there shall need no new Marriage And in this Case Coke Chief Justice said That 39 E. 3. hath the same Case And that if an Appeal be from a Sentence of Divorce they are now by this Baron and Feme again So if a Parson be deprived and Appeals he is by this Parson again and may have an Action of Trespass And as touching Appeals in reference to Deprivation there was a famous Case in the Court of C. B. about 5 or 6 Jac. a Worcestershire Case between Lechmere Plaintiff and Carr Defendant in an Action of Trespass and upon Non Culp pleaded a Special Verdict was found viz. That Bonner was made Bishop of London in the time of King H. 8. and so continued until 2 Ed. 6. at or about which time a Commission issued forth to the then Lord Chancellor and others to Convent Bishop Bonner before them and to examine him and if they found him to be Contumacious and would not Answer them the Commissioners were impowerd then to Imprison him or to Deprive him The Commissioners upon this did first Imprison him and afterwards proceeded further against him to Deprivation Bonner from this Appealeth and his Appeal not heard Nicholas Ridley is made Bishop of London who makes a Lease of the Park and Mannor of Bushley under which Lease the Defendant claimed Afterwards viz. Primo Mariae Ridley is declared to be an Usurper and Bonner by a Sentence Definitive is restored again to the Bishoprick of London and makes a Lease of the Premisses demised to the Plaintiff Upon which Special Verdict the Points stirred were these 1 Whether the Deprivation of Bonner was lawful or not the Authority by the Commission being in the Disjunctive viz. to Imprison or to Deprive him and as it was urged they first Imprisoning of him had thereby executed their Authority and so then the Deprivation void 2 Admitting the Deprivation void then Bonner still continued Bishop of London And then Ridley was never Bishop for that there could not be two Bishops of London simul semel and so the Lease by him made to the Defendant was a void Lease 3 Admitting the Deprivation good then Quid operatur by the Appeal whether it did not suspend the Sentence of Deprivation And if so then again Ridley was no lawful Bishop and so the Lease under which the Defendant claimed was void This Case was Learnedly Argued by Common Lawyers and also by Civilians and the Judges inclined to be of Opinion for the Plaintiff But the Defendant perceiving this preferred his Bill in Chancery and there obtained a Decree against Lechmere 18. If a meer Lay-person who is altogether incapable of a Benefice be Presented Instituted and Inducted yet the Church is not therefore said by the Common Law to be void as if no Presentation had been but is still by that Law full of an Incumbent de facto licet non de jure until by Sentence Declaratory in the Ecclesiastical Court for want of Capacity the Church be Adjudged void and upon this no Lapse shall incurr against the Lay-Patron without Notice of such Incapacity and Sentence of Deprivation thereupon to him given King H. 4. Presented one that was Incapable of his Presentation and the Presentee was thereby Admitted Instituted and Inducted and
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
in Pembrokeshire the Chaunter is next to the Bishop there being no Dean Chauntry Cantaria Aedes sacra ideo instituta dotata praediis ut Missa ibidem cantaretur pro anima Fundatoris Propinquorum ejus These were commonly Little Chappels or particular Altars in some Cathedral or Parochial Church endowed with Lands or other Revenues for the maintenance of one or more Priests to officiate as aforesaid whereof mention is made in certain Statutes of this Realm though not to such Superstitious uses as aforesaid A man might make a Chauntry by License of the King without the Ordinary for the Ordinary had nothing to do there with 9 H. 6. 16. It might be Founded in a Cathedral Church also in any other Church 9 H. 6. 17. Roll. Abr. ver Chauntry lit A. Q. 387. Of these Chauntries there were it seems 47 belonging to St. Pauls Church in London The Superstitious main use and intâ—nt of these Chauntries originally was for Prayers for Souls departed under a supposition of Purgatory and of being released thence by Masses Satisfactory and as in Adam's Case fo 112. mentioned by Sir Hen. Hobart Chief Justice in the Case of Pitts against James That Prayer for such Souls was the general matter of all Obits Anniversaries and the like which were but several Forms of Prayers for Souls And as in the said Case of Pitts if a man give Land to a Parish-Priest to pray or say Mass for his Soul this is within the Law that is within the Statutes of 37 H. 8. c. 4. and 1 Ed. 6. c. 14. as it is held 16 Eliz. Dyer 337. for to this purpose he is a Souls-Priest not a Parochial By which Statutes all Chauntries and all their Lands and Hereditaments are given to the Crown and all Lands Rents and Profits given to the finding of a Priest for the Superstitious ends aforesaid to continue for ever are vested in the actual possession of the King and of his Heirs and Successors for ever who shall also have by the said Statute of 1 Ed. 6. all the Common Goods of such Chauntries and the Debts thereof shall be paid to the Kings Treasurer and shall also have all Lands and all such Sums of money and part of the issues of Lands given for the maintenance or for the finding of any Anniversaries Obits Lights Lamps c. Only the said Act doth not extend to such Lands as whereof the Governours of such Colledges as were mentioned therein or Chauntries were seized to their own uses nor to any Lands or Rents given by the King for the term of his life only nor to any Copyhold-Lands and all Rents and yearly profits due to any Patron Donor and Founder of any of the said Chauntries c. and the Right of others except the Governours of Houses are by the said Act saved to them All Chanteries Colledges Free-Chappels and Hospitals were by Parliament given to King H. 8. for the carrying on the War against France and Scotland Towards the Charges of which Wars the King obtained a Grant in Parliament of the same with the Lands thereto belonging to be united to the Crown But dying before he took the benefit thereof he left that to such of his Ministers who had the managing of Affairs in his Son's Minority Heyl. Hist Eccles pag. 12. In the Reign of King Ed. 6. one of the great Affairs was the retrieving of a Statute made in the 27th year of King H. 8. by which all Chanteries Colledges Free-Chappels and Hospitals were permitted to the disposing of the King for term of his life but the King dying before he had taken many of them into his possession it was set on foot again in the time of King Ed. 6. and by Parliament during his Reign it was Enacted That all such Colledges Free-Chappels and Chanteries as were in being within Five years of the present Session which were not in the Actual possession of the said late King c. other than such as by the Kings Commissions should be altered transported and changed together with all Mannors Lands Tenements Rents Tithes Pensions Portions and other Hereditaments to the same belonging after the Feast of Easter then next coming should be adjudged and deemed and also be in the Actual and Real possession and Seisin of the King his Heirs and Successors for ever And although the Hospitals being at that time 110 were not included in this Grant as they had been in that to the King deceased c. yet there were 90 Colledges within the compass of that Grant those in the Universities not being reckoned in that Number and no sewer than 2374 Free-Chappels and Chanteries the Lands whereof were thus conferr'd upon the King by Name but not intended to be kept together for his benefit only In which respect it was very strongly insisted on by Archbishop Cranmer That the dissolving of these Colledges Free-Chappels and Chanteries should be deferred until the King should be of Age to the intent that they might serve the better to furnish and maintain his Royal Estate than that so great a Treasure should be consumed in his Non-age as it after was These Chanteries consisted of Salaries allowed to one or more Priests to say daily Mass for the Souls of their deceased Founders and their Friâ—rds which not subsisting on themselves were generally incorporated and united to some Parochial Collegiate or Cathedral Church No fewer than 47 in Number being as aforesaid found and Founded in St. Pauls Free Chappels though Ordained for the same intent were independent of themselves of stronger Constitution and richer Endowment than the Chanteries severally were All which Foundations having in them an admixture of Supersâ—â—tion as presupposing Purgatory and Prayers to be made for the deliverance of the Soul from thence were therefore now suppressed upon that account Heyl. Hist Eccles in temp Ed. 6. pag. 50 51. 7. Before King John's time the King and other Founders and Patrons of Priories and Abbies were wont to present Priors and Abbots But by King John there was a Free Election granted unto Priors 8. In Adams and Lambert's Case touching Chanteries these differences were taken 1 If one give 20 l. per annum for the Finding of a Priest and limit to the Priest 10 l. per annum all is given to the King for the residue shall be intended for the finding of Necessaries otherwise it is if a Condition be annexed to the Gift to give 10 l. per annum to a Priest there the King shall have but 10 l. 2 Land of 20 l. per annum is given to find a Priest with 10 l. per ann thereof and that the other 10 l. shall be to the Poor the King shall have but 10 l. But if it be for finding a Priest and maintenance of Poor men without limiting how much the Priest shall have the King shall have the Land for otherwise he shall have nothing 3. If Land of 20 l. is given
for finding Salary for a Priest with 10 l. of it and also a good use is limited there the King shall have but 10 l. although the other Necessaries are to be found for the Priest because a good use in certain shall be preferred before a Superstitious incertain use but if nothing in certain be limited to the Priest the King shall have the Land 4 If Land be given to find a Priest the King shall have it but if a Priest have but a Stipend the King shall have but the Stipend 5. When a certain Sum is limited to a Priest and other good uses are also limited which depend upon the Superstitious use all is given to the King 6. If all the uses be Superstitious of what certainty soever they are the Land is given to the King otherwise it is if there be any good use 9. The Case was where A. devised to the Dean and Chapter of Y. 400 l. to the intent to find a Chantery in their Church perpetually and an Obit for the Soul of D. and that the Chantery-Priest should have 40 Marks yearly King H. 4. gave License to the Dean and Chapter to purchase divers Lands in F. ad onera opera pietatis In the Will of A. they purchased Houses in F. and made Ordinances how the Priests should be maintained and obliged themselves omnia bona sua ad performandum and they employed 8 l. for the maintenance of the Priest and other Sums for the Obit Resolved That this was not a Chauntery either in truth or in reputation within the intent of the Statute of 1 Ed. 6. because here are not any Lands given by A. and his Intent cannot make a Chauntery nor appoint any Lands thereunto but obliged their Goods for the payment of an Annual Sum to a Priest and when no Lands are given nor employed to that purpose it is not reason they should be given to the King A Freeman of London seized of Messuages of the value of 9 l. 4 s. per ann out of which a Quit-rent of 42 s. per ann was paid 6 H. 7. devised the same to the Parson and Churchwardens of the Parish of S. and their Successors That the Churchwardens should receive the Profits thereof and therefore should find a Chaplain for ever to pray for the Soul of him and his Ancestors and to find an Anniversary expending yearly on it 13 s. 4 d. and the Residue of the profits thereof to be expended and employed about the Reparations of the said Church which were done accordingly The Question now was Whether these Messuages were given to the King by the Statute of 1 Ed. 6. of Chaunteries It was said part of the Profits were given for a good use and that should save the Lands But Resolved because that was incertain for it is si quid fuerit and also for that it appeareth That the Superstitious uses and the Quit-rent did amount to the full value of the Messuages and the value shall be taken as it was at the time of the making of the Will and not to be of any greater value that the said Messuages were given to the King by the said Statute A man devised two Houses in L. to the Churchwardens of S. 1 To find an Obit and to bestow 3 s. per annum upon the same Obit 2. The residue of the Profits to Repair the said Church of S. and to provide Ornaments in the said Church In this Case it was Adjudged That by the Statute of 1 Ed. 6. no more of the Land was to the King than was given to the Obit and the Devise to the other uses of the rest was good A Citizen and Freeman of London seized of divers Messuages and Tenements of the yearly value of 30 l. 6 s. 8 d. by his Will before the Statute of 1 Ed. 6. Devised the same to the Corporation of Skinners of London and that 42 s. 8 d. thereof should be employed upon an Obit and 12 Marks yearly thereof upon the Priest and the residue to be employed upon Poor men of the Corporation decayed by Misfortune who inhabited the said Messuages and Tenements and appointed the said Poor men to pray for his Soul and further with the Profits to repair the Messuages and Tenements and after the Statute of 1 Ed. 6. was made of Chanteries It was the opinion of the Court 1 That Lay-Corporations are excepted out of the Statute for their Lands which they have to increase their Treasure for the good of the Corporation but not for Lands which they have to employ to Superstitious uses 2 Resolved That all the money which was given for the Obit and the finding of a Priest was a Superstitious use and given to the King by the Statute but that which was given for the maintenance of the Poor men and although it was appointed them to pray for his Soul which was a Precept suitable for that time and which was given for the Reparation of the Messuages was not given to the Crown by the said Statute And Turner's Case was vouched to be Adjudged where Land was given to the intent that his Feoffees should keep an Obit with so much of the Profits of it as they should think fit in their discretion that the Land thereby was not given to the Crown but so much of the yearly Rent as the Feoffees employed to that purpose and if they had employed nothing that way then nothing was given to the Crown In the principal Case it was Adjudged against the Queen and Informer And in the Case between the Queen and Palmer it was said by Anderson Chief Justice That where a Gift is made to sustain Poor men and Mass-Priests without limiting a certain quantity how much to one use and how much to the other use there the Queen shall have the whole Land But if the quantity was appointed as to one use and how much to the other use there the Land is not forfeited but only so much as is employed to the Superstitious uses 10. In order to the better execution of the Premisses there was a Court established commonly called the Court of Augmentations erected as a Court of Record by Authority of Parliament An. 27 H. 8. which was to have one Great Seal and one Privy Seal consisting of a Chancellor as the chief and principal Officer thereof a Treasurer Attorney Sollicitor Clerk Usher and Messenger All Lands c. belonging to Monasteries Priories and other Religious Houses and Purchased Lands were within the survey and government of this Court which as the Lord Coke says could not be erected but by Parliament because a Chancellor and a Court of Equity were constituted There were also other Ministerial Officers that had relation to this Court for there were Ten Auditors called Auditors of the Revenues of the said Augmentations and Seventeen particular Receivers of the said Revenues This Court of Augmentations together with the Court of General Surveyers being
Canterbury to whose Archbishop it was directed Lindw c. nuper Abbates de Decim And in the Second Lareran Council holden An. 1120. being nigh 60 years before that abovesaid it was Decreed by the said Innocent 3. That the Religious persons viz. the Cistertians Hospitallers Templers and those of St. Johns of Jerusalem which by the Popes Paschal and Adrian were exempted from payment of Tithes should pay the same unto the Parochial Incumbents whereby a Parochial Right of Tithes is settled by a Lateran Council 11. At the Common Law it seems a Parson cannot make a Lrase Parol of his Tithes but may discharge them per parol for in Bellam's Case against Belthrop it was Ruled by Doderidge Jones and Whitlock Justices That where the Defendant in a Trover and Conversion of certain Loads of Fetches justified under the Lord Clare by a Demise per parol for Tithes of Grain for one year made in April that the Lease was not good but altogether void but the Parson may discharge the Parishioner of Tithes per parol or Lease the Rectory consisting of Glebe and Tithes per parol for years 12. In Skelton's Case against the Lady Airie it was said that it was Adjudged Mich. 34 35 Eliz. That a perpetual union of the Parsonage and the Land charged is a sufficient discharge of the Tithes and a Prescription may be well enough to be discharged of the payment of Tithes as it appears by a Case put in the Archbishop of Canterbury's Case Coke lib. 2. G. Crook Counsel è contra conceived that a perpetual Unity was no perpetual discharge and said there was no Judgment given in the Case cited before he also cited 10 H. 7 or 6. where the manner of Tithing is set down he also cited the Bishop of Winchester's Case Coke lib. 2. also the Prior of D. to be Resolved in 40 Eliz. That a Copyholder may Prescribe to be discharged of Tithes by pleading That he was alwaies Tenant by Copy to a Spiritual Corporation and he said That it was Adjudged in Sheddington's Case That if a man Prescribe to be discharged of payment of Tithes by reason of payment of another kind of Tithe that this is not good 13. The Parson of D. Covenanted with one of his Parishioners that he should pay no Tithes for which the Parishioneâ—r Covenanteth to pay to the Parson a certain Annual Sum of money and afterwards the Tithes not being paid the Parson sued him in the Ecclesiastical Court and the other prayed a Prohibition And it was agreed That if no Interest of Tithes pass but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this Case was That this was a bare Covenant and that no Interest in the Tithes pass 14. In Warner's Case against Barrett in the Ecclesiastical Court it was said by Richardson That before the Stat. of Ed. 6. the proper Suit for Tithes was there and if they allow not one Witness to prove payment a Prohibition shall be granted And he put Morris and Eaton's Case in the Bishop of Winchester's Case where it was Ruled if the Spiritual Court will not allow that Plea which is good in our Law a Prohibition lies as in case of Tithes 15. It was moved for a Prohibition because a Parson had Libelled against a Parishioner for Tithe-wool of Rotten-sheep which he ought not to have because he shall have Tithe for the same thing at Shearing-time afterwards as where Tithe is paid for the Cuttinâ—s of Grass it shall not be afterwards paid for the After-math It seemed otherwise to Doderidge and Jones because it is for the same thing there but here the Parson hath no recompence for the Wool And Jones said That if the Parishioner sell Sheep the Parson shall have allowance of the Tithes thereof after the shearing and upon this point a Prohibition was denied Secondly there is a Custome that if a Parishioner hath three Calves he shall pay a peny for the Tithe thereof if seven Calves then one Calf The Parson sued for one Calf because the Parishioner had three one year and four another and for that he had no Tithe for the first three And thereupon a Prohibition was granted 16. In Huddleston and Hills Case it was said That if a man Sue in the Ecclesiastical Court for Tithes of Headlands the Defendant may have a Prohibition but he ought then to suggest That they are but small Headlands and that there is a Custome of Discharge in consideration that he paid Tithes in kind of Meadows And in this case Williams said That if a man keep Sheep in one Parish until shearing time and then sell them into another Parish in this case the Vendee shall pay the Tithe-wool to the Parish where they were depastured in the greater part of the time of the growing of the Wool And in the Case of one Nicholas and W. Ward it was agreed That Tithe Lamb and Wool was included within Small Tithes 17. In Banco Regis a Prohibition was prayed because a Parson had Libelled in the Ecclesiastical Court for the Tenth part of a Bargain of Sheep which had depastured in the Parish from Michaelmass to Lady-day and the party surmized that he would pay a Tenth of the Wool of them according to the Custome of the Parish But the Prohibition was denied for as Doderidge Justice said By this way the Parson shall be defrauded of all if he shall not have his Recompence for now the Sheep are gone to another Parish and he cannot have any Wool at this time because it was not the time of shearing Nota per Whitlock de animalibus inutilibus the Parson shall have the Tenth part of the Bargain for Depasturing as Horses Oxen c. But de animalibus Vtilibus he shall have the Tithe in specie as Cows Sheep c. 18. The Rector of the Church of D. Libelled in the Ecclesiastical Court for the Tithes of a Riding-Nagg where the Case was That a man lett his Land reserving the running of a Horse for some time when he had occasion to use him there The Desendant shewed this matter in the Court by his Council and prayed a Prohibition and abetts that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man wil take 100 or 200 Horses to Grass now he shall pay Tithes for them otherwise the Parson shall be deseated But in this Case if the Desendant alledge and prove that it was a Nagg for labour and not for profit a Prohibition lies 19. In the Case of Bowry against Wallington where W. had Libelled in the Ecclesiastical Court against B. for the Tithes of Wool and Lamb and B. upon suggestion of a Modus Decimandi obtained a Prohibition and had an Attachment and declared upon it
alter not the Prescription And he cited a Cause which was in this Court argued at Barr and afterwards at Bench between Cooper and Andrews Mich. 10 Jac. Rot. 1023. for the Park of Cowhurst Vid. 32 E. 1. Fitz. Avowry 240. 5 E. 2. Fitz. Annuity 44. 20 E. 4. 14. 14 E. 4. 4. But this Case was adjudged for the Plaintiff Quod stet Prohibitio and that which is by the name of Park is for the Land and is annexed to the Land by the name of Park if the Prescription had been to pay a Buck or a Doe out of the Park then it would alter the Case But it is general and had been paid also after the Park disparked And the Case of Cooper and Andrews was a shoulder of every third Deer that was killed in the Park and two shillings in money and that Case was never Adjudged 32. V. brought Trespass against T. Clerk Vicar of A. for taking Bona Catalla and count for the taking of two Carectac glaci Anglicè Wood And upon Not guilty pleaded the Jury gave this Special Verdict viz. for the Moity of a Load of Wood Si videbitur Curiae quod Decimae glaci ne sunt Minutae Decimae then the Defendant Not guilty but Si sunt Minutae Decimae then he is Guilty This Case was argued at Barr by Bridgman and Henden Serjeants And the Court Vnement agreed That for ought that here appears this Verdict being found without any Circumstance that this Wood shall be taken to be Minutae Decimae It was agreed by Henden That if it had been found Wood growing in a Garden then Minutae Decimae And it was agreed by the Court That it might have been so found that it should be Majores Decimae and Praedial as if all the profits of the Parsonage consist of such Tithes And so of other things which in their own nature are Minutae may become Majores if all the profit of the Parish consist therein As in some Countries a great part of the Land within the Parish is Hemp or Lime or Hâ—ps there they are Great Tithes and so it may be of Wool and Lambs Pasch 3 Jac. B. R. in Beddingfield's Case Farmer to the Dean and Chapter of Norwich who had the Parsonage Impropriate and had used to have Tithes of Grain and Hay and the Vicar had the Small Tithes And a Field of 40 Acres was planted with Saffron and it was Adjudged That the Tithes thereof belong to the Vicar There was a Case in this Court as it was vouched by Henden 3 Jac. between Potman a Knight and another And the Question was for Hops in Kent and Adjudged that they were great Tithes but as for Hops in Orchards or Gardens these were Resolved to belong to the Vicar â—s small Tithes There was a Case in this Court for Tithe of Weild which is used for Dying and that was in Kent and it was sown with the Corn and after the Corn is reaped the next year without any other manurance the said Land brings forth and produces Weild And that was a Special Verdict whether the Vicar shall have the Tithe of it or the Parson but one of the parties died before any Judgment And if Tobacco be planted here yet the Tithes thereof are Minutae Decimae And all these new things viz. Saffron Hops Weild c. if it doth not appear by material Circumstances to the contrary shall be taken as Minutae Decimae And so this Case was Adjudged for the Defendant 33. In the Case of a Prohibition in case of a Libel in the Ecclesiastical Court for the Tithes of Cattels the Plaintiff alledged that those Cattel of which Tithes were demanded are for his Dairy and for the Plough and Winch being only present said That the Parson shall not have Tithes of such Cattel but if he breed up Cattel to sell it is otherwise Secondly the Plaintiff in the Prohibition alledged That time beyond memory the Parishioners had paid a halâ—â—â—â—or the Tithe of a Calf and a peny for a Cow and that upon a day limited they use to bring this to the Church and to pay this to the Vicar and now the Vicar had Libelled in the Ecclesiastical Court against them to compel them to bring it home to his housâ— And Winch said That this is no occasion of a Prohibition for they agree in the Mâ—dus but vary in the place of payment and this is not matter of substance and for that reason no Prohibition will lie 34. B. brought a Prohibition against C. and alledged that the Dean and Chapter of D. was seized of the Mannor and the Defendant being Vicâ—r sued in the Ecclesiastical Court to have Tithes and shewed that time beyond Memory c. they had held that Discharged of Tithes for them and their Tenants and that they lett that to the Plaintiff And it was moved by Henden Serjeant That the Dean and Chapter are a Body Politick and Temporal which are not capable of this Prescription in non Decimando Coke 2. the Bishop of Winchester's Case Hobart said That the Dean and Chapter are a Body Spiritual and are annexed to the Bishop throughout all England and if the Bishop is capable of that as it is plain he is then the Dean and Chapter is also capable of that which was granted by Hutton but Winch doubted for he said That he-may be a Lay-man and for that the Plaintiff ought to averr That he is a Spiritual person Hutton confessed That the Dean may be a Lay-man as was the Dean of Durham by special License and Dispensation of the King but that is rare and a Special Case and is not common and general and therefore not to be brought as an Example which was also granted by Hobart Chief Justice and upon that day was given over to the Defendant to shew cause wherefore the Prohibition shall not be granted 35. A. Libelled against W. in the Ecclesiastical Court for the Herbâ—ge-Tithe of young Cattel sâ—il for a peny for every one And Hitcham moved for a Prohibition and said that he ought not to have Tithes if they are young Beasts brought up for the Cart or Plough And so it hath been Adjudged As it a Parson prescribe to have Tithes for Hedgingstuff he cannot because that preserves the Land out of which he had Tithes and then a Parson Libels for Tithes of an Orchard for that it was a young Orchard and the Custome of the place was to pay 4 d. for an Orchard Hitcham said There is not any such difference between old and new Orchards for iâ— the Custome be that he shall pay 4 d. for every Orchard it will reach to the new Orchard And then he Libels for a Hearth-peny for the Wood burnt in his house Hutten said The Hearth-peny is more doubtful for it is a Custome in the North parts to give an Hearth-peny for Estovers burnt for
not power to meddle with them 2 It was Resolved That a Reservation by a Lessee for life who Leases for years to A. is not sufficient to bind him in Reversion to pay Tithes according to that rate 3 That a Rent for half a year and afterwards for another half year is a yearly Rent within the meaning of the Decree And note as the same was last Lett is not intended last before the Decree but before the Demand of the Tithes 71. It was found upon a Special Verdict That the Parson of the Parish makes A. Collector of Tithes and that A. had Licensed a Parishioner to carry away his Corn without setting â—orth of Tithes By the Court clearly that License is void vid. 5 E. 3. 63. Plow 104. That a Collector of Rents cannot make an Acquittance and discharge them And a Consultation was awarded 72. Baron and Feme Lessees of a Parsonage c. The Parishioner sets forth the Tithes fraudulently and presently takes them away again as it appears upon the Evidence And the Husband only brought the Action upon 2 Ed. 6. for the treble Dammages And it was Resolved That Debt lies for treble Dammages upon such a fraudulent setting forth of Tithes although that the clause of Treble Dammages speaks nothing of Fraud But 2 it was Resolved That the Husband and Wife ought to have joyned in the Action because it is not a thing in possession And if the Husband dies the Wife shall have the Dammages and not the Executor of the Husband 73. A Prohibition was prayed upon a Surmize That the Tithes for which the Suit was belonged to the Vicar and not to the Parson By the Court That a Consultation shall be granted for the Right of Tithes is confessed And whether they belong to the Parson or the Vicar that is meerly Spiritual And that so it was Ruled in one Bushel's Case the Parson of Pancras and in one Milbray's Case it was Adjudged accordingly 74. By the Court That a Prohibition shall not be granted upon a bare Surmize that he is sued for Tithes by the Parson of D. of Lands in the parish of S. unless it appears in the Pleading in the Spiritual Court For they there shall not be Judges of the bounds of the Parish Vid. 5 H. 5. 10. 22 E. 4. 24. 75. A Prohibition was pray'd upon a Suit in the Ecclesiastical Court for Tithes in kind of a Park now converted into Tillage upon a Surmize de Modo Decimandi to pay a Buck and a Doe for all Tithes And allowed by the Court and agrâ—ed 1 Although they are Ferae naturae yet they may be given for Tithes So to pay Pheasants c. 2 Although they are not Tithable of themselves yet they may be given for Modus Decimandi As a great Tree may be given for Tithe of Trees tithable 3 That that is a discharge of the very Soil and a Park is not but a Liberty and the Owner may furnish it with Game when he please But after a Consultation was granted because the Surmize was not proved within the Six months So Adjudged Hill 6. Jac. C. B. The Vicar of Clare in Suffolk who sued for Hops And there also a Prohibition was granted upon such a Surmize But after a Consultation was granted in that Case For the Modus Decimandi was alledged for Discharge of Tithes of Hay and Herbage and not of all Tithes where the Libel was for Tithes of Hops And Coke Chief Justice vouched one Shibden's Case That such a Modus Decimandi generally for the Park is not good if it be disparked But it shall be particularly for all Acres contained in the Park 76. Upon a Surmize to have Prohibition after Sentence at the Ecclesiastical Court Two Judgments were vouch'd upon the Statute 2 E. 6. for not setting forth of Tithes And 43 Eliz. B. R. a Parishioner privately sets forth his Tithes and takes witness of it and immediately after he carries them away that is not a setting forth within the Statute For the words are truly justly and without fraud or covin Vid. 10 H. 4. 2. 2. 44 Eliz. B. R. Bâ—kâ—r's Case A Parishioner sells his Grain upon his Land and after by the command of the Vendee he takes his Corn being severed without setting forth of the Tithes That the Parson may well have an Action against him upon the Statute and shall not be compelled to Sue the Vendee who it may be was not known to him And it is not Traversable if the Tithes were set forth according to 47 Eliz. It was Resolved in Trin. 7 Jac. B. R. in Brickendine's Case against Denwood 77. If a Vicar hath used by Prescription time out of mind c. to have all the Tithes within the Parish except Corn which the Parson appropriate used to have viz. of Hay and also of Hops from the time it came into England which was in the time of H. 8. and of Woâ—d which is a Dying plant and moreover Rape-seed is sown there in the Parish where never any such Seed was sown before nor in England till of late times yet the Vicar shall have the Tithes of that Rape-seed and not the Parson appropriate for that it is within the Prescription although it be a new thing and therefore could not be prescribed singly and for that the Parson is excluded of all except the Corn 78. If Doubt arise de Decimis Garbarum as what shall be intended by Garba it is said that Garba at the Common Law signifies at this day a Sheaf of Corn and the Civilians say Garba signifies such a thing as is bound together in one bundle 79. In the Case between Reynolls and Green it was Adjudged by the Court That Wood in its own nature is Great Tithes notwithstanding if a Vicar be endowed de Minutis Decimis and by virtue of the said Endowment had of a long time used to have Tithe of Wood not exceeding the yearly value of 6 s. 8 d. the usage of Wood shall pass by the words de Minutis Decimis in that case by reason of the small value thereof 80. Where a Parson had Two parts of the Tithes and the Vicar of the same place had the Third and they by several Leases had demised the Tithes to one In this Case the whole Court except Justice Fenner held That although the Parson and Vicar could not joyn in this Case in a Suit of Tithes because they claim them severally by divided rights yet when both their Tithes are conjoyned in one person viz. the Lessee then the interest of their Title is conjoyned also in one who made but one Action for the whole Tithes in that case yet it was agreed by all the Judges that the Plaintiff-Lessee should recover his Tithes in dammages and shall not demand them again in any Suit after a Recovery in this Action 81. It was Agreed by the
again to Fertility in that case it shall pay Tithes presently Also Marsh-Lands newly gained from the Sea and Fenn-Lands gained from the Fresh waters by Drayning c. are not within the Statute of 2 Ed. 6. c. 13. to be freed from the payment of Tithes during the first Seven years after the gaining thereof Likewise if Land be gained from the Sea and that by great cost and expence and afterwards turned to Arable-Land it was the Opinion of the Court that it shall pay Tithe notwithstanding the Costs because it is not Barren Land of it self but only by accident and so not within the scope and intention of the Statute of 2 Ed. 6. In the Case between Strowd and Hoskins upon a Prohibition Two Points were Argued by the Four Justices viz. 1 When a Prohibition is brought upon the Statute of 2 Ed. 6. to stay a Suit in the Ecclesiastical Court for Tithes of Barren-Lands the first Seven yearsâ— it behooves the party who brings the Prohibition to prove his Suggestion within Six months otherwise a Consultation by the said Statute is grantable 2 When a Consultation is granted for the Reason aforesaid yet the party may have a new Prohibition upon the same Libel for that the Statute of 50 Ed. 3. doth not extend to a Consultation granted upon non-probate of a Suggestion within Six months but where a Consultation is granted upon the matter of a Suggestion And so the Chief Justice declared the Opinion of the Four Justices and thereupon a Rule given That the Prohibition should stand and the Defendant notwithstanding such Plea aforesaid in Barr of the Prohibition may plead in chief to the matter of the said Suggestion and if he will dispute it then he shall have several Consultations on the said Libel Thus as aforesaid in a Prohibition for Tithes it was said by Papham Chief Justice That if Lands be overflown with Water and afterwards gained by Industry Tithes shall be presently paid although it had been overflown time out of mind for those Lands of their nature were not barren and the Statute of 2 Ed. 6. doth not intend that Tithes shall not be paid within seven years but of such Lands as were meerly Barren and made good by Foldage or other industrious means And so it was Adjudged Pasch 14 Jac. B. R. in the Case between Witt and Buck in a Prohibition upon the Statute of 2 Ed. 6. cap. 13. the Clause touching Barren and Heath-ground of which after improvement no Tithes to be paid the space of Seven years next after the Improvement For a Prohibition it was shewed That this Land for which the Parson Libelled for Tithes was Marsh and Sandy Land and covered with Salt water so that time out of mind no Grass had been known there to grow nor any profit at all made of this until now of late time by and with the great costs charges and industry of the Tenant this ground had been lately gained from the Sea and from its overflowing by repairing and making new Banks and Sea-walls and by continual repairing of them and so he had now converted the same into Arable Land where he had Corn and of this Land the Parson Libels for Tithes in the Ecclesiastical Court And upon this matter thus shewed a Prohibition prayed being to be discharged from payment of Tithes of this Ground for Seven years this Statute being thus made for the encouragement of Tenants to make improvement of their Lands Coke Chief Justice It was Resolved in one Farrington's Case upon this Statute of 2 Ed. 6. that Wood-ground is not Barren ground within this Statute This was there Adjudged That if one do stock and grub up Wood-ground and after convert this into Arable ground he hath by this meliorated his Land but with great cost and labour yet he shall pay Tithes for this ground presently for that Heath and barren-ground intended to be within the Statute ought to be such Land as is suapte natura sterilis and Barren Dederidge Justice A Salt Marsh if this be fenced and so made good Meadow shall pay Tithes presently yet before this was so fenced no Tithes thereof payable Coke This Land shall be out of the Statute out of the clause of Discharge for Seven years notwithstanding this charge the Tenant hath been at in gaining this Land from the Sea for to have this Land within the clause of Discharge within the Statute it ought to be Suapte natura Barren which here it is not but by accident and by the overflowing of the Sea The whole Court agreed in this That by this Statute Barren ground is such ground as will not bear Corn of it self without very great cost in the extraordinary manuring of it and therefore that this is no such Barren ground within the Statute as ought to be discharged from payment of Tithes but that Tithes ought to be paid for the fame and that the Parson had just cause to sue for his Tithes in the Ecclesiastical Court and therefore the Prohibition was denied Beech-Trees regularly are Tithable yet in a County where there is a scarcity of Timber and where Beech is used as Timber for Building or the like there possibly they may be discharged of paying Tithes and therefore in Trin. 38 Eliz. it was Resolved That Tithes shall be paid of Beeches although they are above twenty years growth for they are not Timber Yet in Holliday and Lee's Case in a Prohibition it was Resolved That Tithes should not be paid of Beeches of above twenty years growth And in Pindar's Case it was also Resolved That Beeches above twenty years growth being Timber shall not pay Tithes yet in a Countrey where there is plenty thereof they are not to be accounted Timber or Tithe-free So that Beeches in their own nature are not computed Timber-trees and therefore Tithable except where by the Custome of the Countrey where there is scarcity of Wood they are accounted Timber-trees in which case they are not Tithable The Judges of the Common Law have Resolved That all sort of Wood that is usually employed for the building of Houses Mills c. are Gross Woods and within the Statute of 45 Ed. 3. cap. 3. of which sort are Oak Ash Elme Beech Horse-Beech and Horn-bean against the opinion in Molyn's Case as also in Man and Somerton's Case where it was said by Tanfield Justice That Beech by the Common Law is not Timber and so he said it was Adjudged in Cary and Pagett's Case and in that case it was holden That Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood as in Buckinghamshire for there it is reputed Timber but in a plentiful Countrey of Wood it is otherwise for there it is not Timber and Tithes shall be paid of it as Sylva caedua for which Tithes shall be paid under the growth of 20 years Bees pay not Tithes by the Tenth
this H. procured a Prohibition against H. and declared that the Defendant had sued him in the Ecclesiastical Court for a Way or Passage he was Proprietor of Tithes in the Parish of M. and that the Common way to carry the Tithes out of the Plaintiffs Land was by a Close called S. and that the Plaintiff had stopt it up when in very truth the Way was by Prescription by a Close called W. and that he had pleaded it in the Ecclesiastical Court and the said Court would not allow thereof and for that the Cognizance of a Prescription for a Way ought to be tried at the Common Law and not in the said Court c. Whereupon the Defendant demurred and by the Opinion of the whole Court a Consultation was granted for that the Cognizance of Waies for the carrying of Tithes belongs to the Court Christian as appears by the Statute of 2 Ed. 6. and Fitzh N. B. in Consultation and Lindwood de Decim When Tithes of Corn are severed from the Nine parts an Action of Trespass lieth against any that shall take them away whether he be the Owner of the Land or a Stranger Also an Action of Debt lieth for Predial Tithes as of Corn Wood Grass Fruit Hay c. and treble Dammages recoverable upon the said Statute of 2 Ed. 6. 13. But not so for lesser Tithes as of Wool Lamb c. nor for money given to the Parson in lieu thereof but for each of these Suit may be commenced according to the Statutes of 27 H. 8. and 2 Ed. 6. 13. 32 H. 8. 7. So that if the Owner of the Corn set out his Tithes and after take it away the Parson may sue him in the Ecclesiastical Court or bring an Action of Trespass against him But the Parson may not sue a Stranger in the Ecclesiastical Court for taking away the Tithes which were set out In Hele's Case against Frettenden the Resolution of the Court upon Two Cases upon the Statute of 2 Ed. 6. for not setting forth of Tithes was this viz. A man possessed of Corn sells it and before Two Witnesses sets out his Tithes and afterwards privily takes away the Tithes and the Parson sues him upon the Statute for Treble dammages for not setting forth of Tithes And the Defendant proves by Witnesses that he set forth his Tithes yet the Fraud is provided against by the Statute for the words are without fraud or deceipt In the second Case One secretly fells his Corn to one who was not known and afterwards the Vendee commands the Vendor to cut the Corn which he doth and takes away the whole Corn without setting forth his Tithes the Question was who should be sued for the Tithes and the Court held that the first Vendor should be sued for it was Fraudulent And where a Woman being Proprietor of a Parsonage took A. to Husband a Parishioner within the Parish set forth his Tithes and divided them and then immediately took them back again A. the Husband alone sued for the Treble value according to the Statute of 2 Ed. 6. Two points were moved 1 Whether that were a setting forth within the Statute And by the Court that it was not and so hath been Adjudged in 43 44 Eliz. and 1 Jac. 2 Whether the Husband may sue for the Treble value without naming his Wife And to that the Court would be Advised for though the Husband may sue alone where a thing is Personal for which he sueth as the Books of 4 Ed. 4. 31. 7 Ed 4. 6. 15 Ed. 4. 5 11. are yet where the Statute saith That the Proprietor shall have Suit for the not setting forth c. the Husband is not intended Proprietor as the Statute intends but the Wife and for that the Wife ought to joyn For the due manner of Tithing Corn the Parishioner ought of Common right to cut the same and to prepare it for the Parson and to separate it from the Nine parts he ought also of Common right to make up the Corn into Sheaves but is not obliged to gather and set it up into Hillocks or Heaps for the manner of Tithing is good if the Corn be thrown out in Shocks and being so set out they become Lay-Chattels In Guin and Merryweather's Case it was said by Doderidge Justice That if one defame and scandalize the Parson's Title to the Tithes although he be not punishable for this in the Temporal Courts yet he is punishable in the Ecclesiastical Court he said also that when Tithes are set out they are then Lay-Chattels and if a Stranger carry them away the Action lies not in the Ecclesiastical but Temporal Court otherwise it is if it were not severed from the Nine parts Ley Chief Justice Agreed it and said That if a Stranger take the Corn before Severance of the Tithes the Parson shall sue in the Ecclesiastical Court for Tithes against the Trespasser and not against the Terre-Tenant And where the Right of Tithes comes in question Prohibition shall not be granted Nor shall Fraud or Covin prevent the payment of Tithes for in a Case of Tithe-Corn where the Custome of L. in the County of B. was alledged That the Parson ought to have the Tenth Land of Corn beginning at the such Land which was next to the Church the Occupiers of the Land to defraud the Parson by Covin did not sow the Tenth-Land nor manure it yet the Parson sued for Tithe in kind to have the Tenth-Cock for Tithe of the Corn sowed and a Prohibition awarded notwithstanding the Covin because he had Remedy at the Common Law for the Fraud Cows that yield Milk no Tithe is to be paid for the Pasture thereof and if a man hath but one Cow and no Cheese made of the Milk thereof the Custome of the place must be observed so that something be paid for the Tithe thereof otherwise no Custome will bind Curtelages or places adjoyning to Mansion-houses and applied to Seeds Herbs c. are Tithable in kind if the Parson make not an Agreement for the same otherwise it must be Tithed in kind by setting forth the Tenth-part for the Parson when the Owner receives his Nine parts Custome is where a Right to many is procured in Common and Publick as Prescription is privately to one If the Custome be of translating of Tithes Predial as in Composition then it holdeth Otherwise if it be of Tithes Personal But if it be of not yielding Tithes at all it doth not hold for a Custome of paying nothing at all is not good but if it be only of yielding less than the Tenth it holdeth both in Personal and Predial Tithes It holdeth also as to the Place where Tithes ought to be left of the Time when to be yielded as also of the manner and form of yielding them So that although Custome which chiefly refers to a Place as Prescription doth to a Person cannot totally take the Tithes
leased all his Glebe-Lands with all Profits and Commodities rendring 13 s. 4. d. pro omnibus exactionibus demandis and afterwards Libelled in the Ecclesiastical Court against his Lessee for the Tithes thereof It was the Opinion of the Court That Tithes are not things issuing out of Lands nor any Rent or duty but Spiritual and if the Parson doth Release to his Parishioner all demands in his Lands his Tithes are not thereby extinct and therefore a Consultation was granted And so it was Adjudged 32 Eliz. in Babington's Case That such Lessee should pay Tithes to the Parson for that they are due jure divino and cannot be included in Rent As long as the Vicar occupies his Glebe-Lands in his own hands he shall pay no Tithes but if he Demise it unto another the Lessee shall pay Tithes to the Parson that is Impropriate If the Vicar sow the Land and die and his Executor take away the Corn. and doth not set forth his Tithe and the Parson bring his Action of Debt upon the Statute of 2 Ed. 6. In this case the Court seemed to incline that it would lie The Glebe-Lands and Spiritual Revenues of Clergy-men being held in pura perpetus Eleemosyna h. e. in Frankalmoign are exempted from Arraying and Mustering of Men or Horses for the War as appears in a Stat. of 8. H. 4. nu 12. in the unprinted Rolls of that Parliament An Abbot was Parson Imparsonee of the Church where the Abbey and Tithes were the Abbey was Dissolved the King granted the Monastery to one and the Parsonage and Rectory to another It was the opinion of the Justices That if the Land of the Abbey was the Glebe of the Parsonage before the Impropriation that then the Land was discharged of Tithes for it remains Glebe notwithstanding the Appropriation and the Glebe cannot be gained by Prescription nor was ever chargeable to pay Tithes And if the Parson doth make a Lease of his Glebe the Lessee as was there said contrary to what was before said shall not pay Tithes but the Demesns of the Abbey not parcel of the Glebe should be chargeable to pay Tithes if they were not discharged in right of a Composition or perpetual Unity Grass pays a Predial Tithe but if a man cut Grass and before it be made into Hay being only put into Swathes he carry it thence and give it to his Plowing Cattel for their necessary sustenance not having otherwise Food sufficient for them in this case no Tithes shall be paid for the same and Prohibition was granted Mich. 9. Car. B. R. Crawley Wells per Curiam The Case was where J. Libelled in the Ecclesiastical Court for the Tithes of the Profits which came of the Grass and herbage of Pasture-Land and upon a Prohibition granted P. suggests That he did feed on that Grass and Pasture with his own Plough-Cattel and with the Plough-Cattle of other man in the same Village Noy Consultation shall be granted for though a mrn shall not pay Tithes for the Cattel of his Cart yet he shall pay Tithes for the Land whereon they do feed Doderidge Justice Where I do agist Cattel and take the Cattel of other men to eat up my Grass and Pasture there I shall pay Tithes for the Grass otherwise it is where the Grass is only such as I do depasture with my own working Cattel Crook cited Sherington and Fleetwood's Case where a man Agists other mens Cattel on his Meadowgrouâ—d whereof he paid Tithe-Hay afore time and it was Resolved in this Case That he shall not pay Tithes for that Meadow-ground now fed with other mens Cattel after Harvest and no more than if he had depastured the Land with his own Cattel Gravel is not Tithable Mich. 19. Eliz. B. R. Pasch 34. Eliz. C. B. Liff and Watt ' s Case Grain is computed among the Predial Tithes which is to be set out according to the Statutes and the usage of the place Brownl 1. 14. which holds true of all sorts of Grain in all grounds within the Parish The Law is the same touching Hay in Meadows Grounds lett to Strangers out of the Parish the Tenth-peny of the Rent is commonly payable to the Parson if no Custome against it Or Ground within the Parish lett to a Stranger without the Parish is Tithable by the Ower of the Cattel unless the Custome there be osherwise Or if the Ground be fed with Cattel that bring no profit to the Parson the Owner thereof must pay Tithes for them Or Ground fed with the Cattel of a Stranger within the Parish which brings no profit to the Parson or Vicar he is to pay Tithes for it the Case therefore seems the same if both the Ground and the Cattel be his own that is the Stranger in case he work them in another Parish But the Studs of Ground or the Meers thereof at the Ends of Land and adjoyning to the Arable-ground are not Tithable where the Land it self pays Tithe unless where being mowed for Hay it hath used to pay Tithes H HAy pays a Predial Tithe and is to be Tithes in Swathes Windrows or Cocks as the Custome of the place is Or if the Custome be to measure out the Tenth part as the Grass grows on the Land for Hay the Custome is good and the Tithe of Hay may be set forth in Grass-Cocks where the Custome doth not oblige to make it into Hay-Cocks And if Hay be put into Ricks on the ground and after sold the Buyer cannot be sued for the Tithe the Seller may in case the Tithe thereof were not paid before Hill 16. Jac. by three Justices in Ashfield's Case And where two Crops of Hay are had from the same ground in the same year Tithe shall be paid as well of the latter as of the former Also Tithe shall be paid of the Hay made of Grass growing in Orchards Co. 2. Instit 652. But no Tithe Hay shall be paid for the Grass growing upon Headlands which are only large enough for the turning of the Plough but not for Grass cut in Meadows to feed the Beasts of the Plough and not made into Hay Trin. 1. Car. B. R. Wells vers Crawly Yet on some Headlands Tithe may be payable of Hay for suppose that in an Arable Field there be much Grass on the Headlands thereof and there be a Prescription to pay the Tenth Shock of Corn there for all the Hay on the Headlands and Rakings of the Corn and for Tying of Horses on the Headlands such Prescription was held good to discharge the Tithe of the Hay upon such Headlands And although a Second Crop of Hay from the same ground the same year is Tithable as aforesaid yet regularly the Hay of the Aftermath pays no Tithe except there be a Special Custome for it the Rule being That Tithes shall be paid Ex annuatis renovantibus simul semel And where the
the Court That in this Case a Prohibition should be granted for de Communi jure no Tithes are to be paid of the yearly Rent or value of Houses for Tithes are paid of the revenue and increase of things and therefore no Tithes are paid for Houses in any Cities or Towns in England saving in London and this Parish is out of London and the Liberties thereof Now where there is no Tithe at all there can never be a Modus Decimandi and yet it seems this kind of Payment hath been long used in London which certainty was by use But for Houses Oblations were paid in all places which are now by the Stat. brought to a certainty viz. 4 d. for a House Trin. 12. Jac. C. B. Dr. Leyfield and Tindall's Case Hob. 10. 11. In Green and Piper's Case it was agreed by the Justices That a House in London which was parcel of the Possession of a Priory which was discharged of the payment of Tithes should by the Stat. of 37 H. 8. be charged with the same One who was a Curate and Sequestrator only of the Rectory of D. in London the Incumbent being suspended Sued Four of the Parishioners in the Ecclesiastical Court for Tithes of their Houses and not before the Mayor of London according to the Statute of 37 H. 8. The Court doubted of it especially because the party was neither Parson nor Vicar and because the Statute is a New Law and appoints how the Tithes in London shall be paid and Ruled and before what Judges and what Remedy shall be for the party grieved and day given to hear Counsel on both sides In the Case aforesaid between Green and Piper when Suit was in the Ecclesiastical Court for the Tithes of a House in London a Prohibition was prayed upon a Surmize That the House was a Priory which was discharged of Tithes by the Pope's Bull and the Statute of 31 H. 8. which gave their Possessions to the Crown did Ordain That the King and his Patentee of such Lands should be discharged of Tithes yet a Consultation was awarded because by a latter Statute viz. 37 H. 8. cap. 4. all Houses in London shall pay Tithes according to their Ordinances and the Statute extends to all Houses and none excepted but the Houses of Noble-men L LAmbs are computed among the Mixt Tithes To pay Pence apiece for Lambs when the number is less than Seven is a good Prescription Curia 7 Jac. B. R. Patche's Case Or rather thus viz. if the Parishioner hath Six Lambs or under he shall yield for Tithe a halfpeny for every Lamb if he hath Seven Lambs then he shall yield a Lamb for his Tithe and receive Three-halfpence from the Parson if Eight Lambs then a peny if Nine Lambs then a half-peny from the Parson who may otherwise expect the Fall of the Tenth Lamb the year next following Lindw cap. Quoniam propter Also the Tithe of Lambs is to be apportioned with respect to the places where they were engendred brought forth and nourished Lindw cap. Quoniam audivimus And regularly the time of payment is when they are weaned from the Dam unless the Custome of the place be otherwise To stay a Suit in the Ecclesiastical Court for the Tithe of Lambs a Prohibition was prayed upon a Surmize the Custome to be That if one hath Lambs under the number of Seven he ought to pay a halfpeny for every Lamb in lieu of all Tithes of Lambs if he hath but Seven then the Parson to have the Seventh and he to pay Three-pence if Eight then Two-pence and if he had Ten the Parson should have the Tenth without paying any thing Resolved That this being a Custome which they refused to allow in the Ecclesiastical Court a Prohibition should be awarded Lands accruing to the Crown by the Statute of 27 H. 8. touching Dissolutions are now Tithable though whilst they were the Lands of Religious Houses they were not Tithable but their Priviledges being Personal they were extinguished by the said Statute of Dissolutions nor hath the Statute of 31 H. 8. retrospect to the said Priviledges 15 Jac. C. B. Garret and Wrigh's Case 7 Car. B. R. Clark and Ward 's Case Vid. Sr. Marmad Strickland's Case 1639. Adjudged at York Assize accordingly Vid Clayton's Rep. 117. 12 Car. Adjudged in another Case Also Lands gained from the Sea and made Arable must pay Tithes Bulstr 8. 165. So must Lands in themselves Tithable but not Manured or Ploughed specially if so in prejudice to the Parson in which case he may Sue the Occupier of such Lands in the Ecclesiastical Court for the Tithes of that Land Vid. 15 Car. C. B. per Berkley Justice Adjudged Lops of Trees above twenty years growth shall pay no Tithes For it hath been held that if a man Lop a Tree under twenty years growth after suffer the Tree to grow past twenty years and then Lop it again no Tithe shall be paid for the second Lopping although the first Lopping were not Tithe-Free It was Resolved in Reynold's Case That Tithes shall not be paid of the Lopping of Trees above twenty years growth More 's Rep. Lime is not Tithable Adjudg 19 Eliz. B. R. Pasch 34. Eliz. C. B. Liff and Waltt's Case Nor Marle Bricks Slates or Tiles unless the Custome of the place make them Tithable otherwise not because they do not annually increase and because Lime is part of the Freehold Mich. 13 Jac. B. Thomas and Perrye per Curiam M MAst of Oak or Beech if sold the Tenth-peny is payable for the Tithe therof but if eaten by Swine then the Tenth of the value or worth thereof Meadows by ill husbandry over-run with Thorns Bushes and the like are not computed as Barren Lands but do still remain Tithable Hill 38 Eliz. B. R. Sherington and Fleetwood's Case Vid. 15. Car. B. R. Sugden and Cottle's Case Mills the Tithe thereof as also of Parks Ponds Warrens Dove-coats and Bees seem primo intuitu as if they were all Predial Tithes For the Tithe of Mills not the Tenth peny-Rent but the Tenth Measure of Corn grinded at the Mill is responsible for the Tithe understand it of Corn Mills whether new or old driven by Wind or Water for the Tithe whereof generally the Tenth Toll-dish is due if there be not some other Custome in the place And whereas by the Law and the ancient Constitutions of the Church Tithes were not paid of Ancient Mills yet by the Statute of Articuli Cleri cap. 5. Tithes are to be paid for all Mills newly erected so that de Molendino de novo Erecto Tithes shall be paid Trin. 14. Jac. B. R. So that all new Corn Mills be they Wind or Water Mills also Fulling Mills Paper Mills Powder Mills Stamping Mills and probably for the same reason Saw Mills Iron Mills and all others that are of Common and Publick use do pay Tithes but old Corn Mills for which no Tithe was ever
paid no Tithe is to be paid except a Personal Tithe as is for a Trade of profit And such Tithe shall be paid of Fulling Mills Rapt Mills Paper Mills Iron Mills Powder Mills Lead Mills Copper Mills and Tin Mills for such Mills pay no Tithe as Mills because they are but Engines of their occupation Pasch 17. Jac. Johnson's Case Cro. 2. 532 Bulstr 3. 212. Fitzh N. B. 41. G. Co. 2. 44. only the Millards are to pay a Personal Tithe as aforesaid as for a Handicraft or Faculty Therefore a Fulling-Mill as such pays no Tithe Hill 16 Jac. B. R. between Dawbridge and Johnson Parson of Buckfield For there being a Fulling-Mill which Fulled 40 Clothes a week and gained two shillings for every Cloth It was held that there was no Tithe to be paid thereof Cro. 2. Abridg. Case 2638. But a Corn Mill newly erected though upon Land discharged of Tithes by the Statute of Monasteries must pay Tithes and so of every new erected Mill on a mans own ground Ibid. Cas 1522. Notwithstanding the Premisses it seems somewhat questionable whether any Tithes are due for Mills de jure or not for the Lord Coke Instit 2. par 622. says It was never Judicially determined that ever he knew of If Mills do not yield a Predial Tithe yet doubtless the Millards are to yeild a Personal Tithe as well as other Handicrafts-men but Custome in this as in other cases prevails It hath been Adjudged Trin. 18. Jac. B. R. That where a Parson Libelled in the Ecclesiastical Court for Tithes of a Mill which was erected upon Lands which were discharged from payment of Tithes by reason of Priviledge within the Statute of 31 H. 8. That a Prohibition would not lie in that case for that De Molendino de novo Erecto Tithes ought to be paid Mich. 15 Eliz. in Hapers Rep. acc But in the other Case of the Fulling-Mill aforesaid where the Parson Libelled in the Ecclesiastical Court for the Tithes thereof and suggesting that the Miller Fulled every week 40 Clothes as aforesaid and gained two shillings of every Cloth demanded Tithes for them A Prohibition was granted in that case for it was said by the Justices That by the Law of the Land he ought not to pay Tithes of such Mills for of such things as come only by the Labour of men Tithes are not payable but of things which are renewable every year dict Cas Dawbridge Johnson Cro. par 2. 523. And in another Case where a man Libelled to have Tithes of Mills upon a Suggestion of a Modus Decimandi for the same a Prohibition was granted In that Case it was said by Coke Chief Justice That in some cases Tithe is payable for Mills and in some cases not No Personal Tithes by the Statute is to be paid of Mills but where by special Usage the same hath been paid and whereas a Modus Decimandi was alledged to pay Tithes for Mills it was Resolved That the Modus did not extend to Mills newly erected upon the Statute of Articuli Cleri for De Molendino de novo erecto solvuntur Decimae Trin. 14 Jac. B. R. Jake's Case Bulâ—â—r pa. 3. 212. If two Fulling-Mills be under one Roof and a Rate-Tithe paid for 〈◊〉 Mills and after you alter these Mills and make one of them a Corn-Mill the Rate-Tithe is gone and you must pay Tithes in kind Brownl pa. 1. Cases in Law If there be two ancient Corn-Mills time out of mind c. for which 6 s. 8 d. have been paid for the Tithes time out of mind c. and after in continuance of time the Mill-Stream doth change his course and goes another way at a little distance from the ancient Stream and thereupon the Owner of the Mills pulls down one of the ancient Mills and new builds it in that other place where the Stream now runs In this case it shall be discharged of any Tithes by force of the ancient Modus for that happened by the act of God and not by the act of the party and Prohibition was granted accordingly Mich. 11 Car. B. R. Johnson and Dawbridge's Case Resolved Per Curiam But withal the Court held that if the Stream had been altered by the Owner Tithes ought to have been paid as of a new Mill. In another Case it being Libelled in the Ecclesiastical Court for Tithes of a Grist-Mill and of a Fulling-Mill Crook agreed That for a Grist-Mill Tithes shall be paid but he said That the Statute De Articulis Cleri which speaks de Molendinis non fiat Prohibitio ought not to be meant or intended of a Fulling-Mill for the profit that accrues by that is by the Labour of men and therefore not intended within the general words of the Statute De Molendinis for which reason he prayed a Prohibition Calthroppe said that it was the opinion of Justice Warburton and Nicholls 12 Jac. That Tithes shall be paid of Fulling-Mills viz. the Tenth-peny of the gain or profit but of Grist-Mills the Tenth-dish of Corn shall be paid for that is in the nature of a Predial Tithe And so it was held 5 Jac. in the Case between Vbi and Lux Vid. Lindw Provin Constit But yet Doderidge held That if there be not a Special Custome alledged for the payment of Tithes of a Fulling-Mill Tithes shall not be paid thereof for he had spoken as he said with the Civilians who held that Tithes should be paid of such a Mill but they could not agree what manner of Tithe it is for some said it is a Predial Tithe Others that it is a Personal Tithe but he said it could not be a Predial Tithe for it wholly accrues by the Labour of man and if so be that he should have that Tithe as a Predial Tithe then another Tithe would be demanded of him who Sheers the Cloth and also of the Dyer thereof and so Tithes should be paid many times for the same Cloth But the Usage or Custome of the Countrey is to be considered And for Tin-Mills or Lead-Mills or Plate-Mills Ragg-Mills or Edge-Paper-Mills no Tithes shall be paid and to this agreed Doderidge Houghton and Croke And therefore as to the Grist Mill a Consultation was granted and as to the Fulling Mill there was a Prohibition Pasch 17 Jac. B. R. Roll. Rep. par 2. A Parson Libelled in the Ecclesiastical Court for Tithes of a Mill which was erected upon Lands discharged of Tithes by the Statute of Monasteries 31 H. 8. A Prohibition was prayed but denied by the Court for de molendino de novo Erecto non jacet Prohibitio Trin. 15 Jac. B. R. Cro. par 2. Also in another Case where it was moved for a Prohibition upon a Suggestion of a Modus to pay so much by a Custome for all Mills erected or to be erected and this appearing to be a New-erected Mill Whether the Custome shall run to this or not upon the Statute of Articuli Cleri c.
and would go out of the enclosure if their Wings were not clipt and in this case Prohibition hath been granted between Winbrook and Evans Mich. 11 Car. B. R. It was Surmized That no Tithes are paid of them in a great Circuit called the Chiltern in the same County viz. of Bucks and so Prescribe in non Decimando but the Court granted the Prohibition for that they are Ferae naturae Pidgeons are Tithable Mores Abr. 1270. But if a man keep a Family and hath Pidgeon-holes about his House and he keep some Pidgeons and he kill and spend in his House the young Pidgeons that are bred there he shall not pay any Tithes for them In this Case between Vincent and Tutt Hill 13 Car. B. a Prohibition was granted and upon the Parsons Plea that the Parishioner sold them a Consultation For Tithes of Pidgeons no Prohibition lies as was Resolved in Jones and Gastrell's Case Hill 15 Jac. B. R. Roll. Rep. For the Court there said That Tithes ought to be paid of Pidgeons and for Conies per Doderidge Justice to which the Court agreed In the Case of a Prohibition for suing for Tithe Pidgeons the Defendant in the Ecclesiastical Court pleaded payment they refuse the validity of that Plea without Proof by two Witnesses the Court said it would be a great inconvenience to bring two Witnesses to prove payment of every sort of Tithes wherefore a Prohibition was granted Malary and Mariots Case Cro. par 1. And in another Case a Prohibition was prayed where the Parson sued in the Ecclesiastical Court for Tithe of Pidgeons and awarded to stand because the Court there would not allow the proof without two Witnesses More 's Abr. Case 1208. Probably the same Case with the former Vid. Doves Pigs if there be but Nine as also Calves if there be but six and the like under the number of Ten in one year the Parson can have no Tithe thereof in kind that year without a Special Custome for it but must have his Tithe pro rata either in money the same year if there be any Custome for it or in kind the next year reckoning both years together Mich. 7 Jac. C. B. Pigs are accounted a Predial Mixt Tithes Mich. 8 Jac. C. B. Pits of Stone Lime Gravel Marble Marle Chalk Cole and the like are not Tithable for the Land must not pay a double Tithe Regist 51. F. N. B. 53. 9. Broo. Dismes 18. Plants or young Plants transplanted are in some cases Tithable for the Case was A man had a Nursery of young Plants in his ground and used to transplant them and to give or sell them to others who planted them de novo in their ground out of the Parish the Parson of the Parish where the Land lay in which they were first planted Libelled in the Ecclesiastical Court for the Tithes of the value of the said Plants transplanted and a Prohibition was granted and Declaration thereon given and a Plea given in and Replication and thereon Demurrer and it was argued by Maynard for the Defendant and Rolls for the Plaintiff The only point was Whether Tithes should be paid in that case it was Resolved per totam Curiam that it ought to be paid and thereupon a Consultation was granted The Case had been otherwise Resolved if the said Plants so transplanted from the said Nursery had been replanted in the same Parish Prescription which refers to a certain person House Land or other thing as Custome doth to a County City Town Hundred c. may be considered under two respects either de Modo Decimandi or de non Decimando There is also in some Counties a Decimando res non Decimabiles a Tithing of things in their own nature not Tithable as the Tithing of Tin and Sea-Fish in Cornwal and Devon Lead in Derbyshire c. but this is by Custome not by Prescription which though in respect of Place is regularly of a more extensive latitude than properly Custome is yet in respect of Persons and Things is regularly under more Restrictive limitations than the other but as to their Origination they both ought to be continually-constant without interruption and as to their Antiquity both of them ought to be of a more Ancient date than any Memory of man can contradict and such being once duly acquired there are not many interruptions or disturbances that will null or frustrate the same A Prescription goeth to one man and a Custome to many Hill 6. Jac. rot 2613. Rolls vers Mason Brownl Rep. par 1. Prescription is Personal and alwaies made in the name of a certain person or his Ancestors or those whose Estates c. But a Custome is Local and alledged in no person but that within the Mannor there is such a Custome Co. 4. Foiston Cratchwood's Case The payment of a Sum of money or other thing in lieu and recompence of Tithe for sixty years or thereabouts is held a reasonable time to make a Prescription It was Adjudged in Grisman and Lewes Case That a Prescription to pay Tithes of one thing in recompence of Tithes of another thing is not good Adjudged also that Tithes shall be paid of Agistment of Cattel against the Opinion of Fitz. 53. Cro. par 1. This Prescription is Real that is it respects not the New or never before Tithed Fruits but the Tithable grounds that produce them thence it is that an alteration of Grain or Plants in the same Ground alters not a Prescription but he that Prescribes in the one shall Prescribe in the other also Yet a Prescription extends to no more than is in possession And therefore if the Parson of A. Prescribes to the Tithes of the Parish of B. and there happen to be Decimae Novalium that is Tithes arising of such Grounds as were never Manured nor yielded before any profit to the Church the Parson of B. and not the Parson of A. shall have them nor will Prescription lie against a Composition between the Parson and the Vicar nor hath Prescription any place where the Interessed in his right can make no demand the matter ceasing whereupon it should work So of Wood never cut the Tithe could never be demanded Regularly a Prescription to pay no Tithe nor any thing in lieu thereof is not good nor will it discharge though nothing can be proved to have been paid within the Memory of man Yet a Discharge of Land from Tithes may be shewed another way which will amount to the payment of no Tithe so that although a meer Lay-man cannot Prescribe in non Decimando yet he may Prescribe in modo Decimandi to pay a Composition to the Parson in lieu of all his Tithes and such Composition shall bind the Parson and such a Prescription shall be good But as to persons Ecclesiastical such may Prescribe not only in modo Decimandi but also in non Decimando and so may their Tenants whence it is that a
the different conditions of the persons of whom they were begotten As when they were begotten by persons of a single and unmarried Estate and of such as were kept as Concubines the Civil Law called them Filii Naturales if begotten of single Women not design'd for Concubines for satisfaction of present Lust then they were called Spurii if begotten of such as the Law styles Scorta or common Harlots by publick profession than they were called Manzeres if begotten of Married Women then they were called Nothi if begotten between Ascendents and Descendents or between Collaterals contrary to the Divine prohibition then they are called Incestuosi 6. Bastardy so stains the Blood that the Bastard can challenge neither Honour nor Arms and so disables him that he cannot pretend to any succession to inheritance The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy but something as to the prosecution thereof The Ecclesiastical Law brings it two ways to Judgment Incidently and Principally the Common Law makes two sorts thereof General and Special Incidently at the Ecclesiastical Law when it is pleaded in Bar to a claim of something in right of Nativity Principally when by reason of some slanderous and reproachful speeches it is brought before the Court as the principal matter in Judgment to be alledged and proved that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge Ad Curiam enim Regiam non pertinet agnoscere de Bastardia General Bastardy at Common Law is so called because it is in gross objected in Barr against a Man to disappoint him in the Principal matter of his Suit Which because it is of Ecclesiastical Cognizance is sent by the Kings Writ to the Ordinary to enquire whether the Party charged with Bastardy were born in or out of Lawful Matrimony And as the Ordinary finds the truth of the matter upon due examination so he pronounceth accordingly in his Consistory whereof he returns Certificate to the Temporal Courts Special Bastardy at the Common Law seems to be only that where the Matrimony is confest but the Priority or Posteriority of the Nativity of him whose Birth is in question is controverted General Bastardy ought to be Tryed by the Bishop and not by the Country But Bastardy in this sense cannot be tryed by the Ordinary otherwise than by vertue of the Kings Writ on some Suit depending in the Temporal Court When Issue is joyn'd on Bastardy before it be awarded to the Ordinary to Try it Proclamation thereof is made in the same Court and after Issue it is certified into Chancery where Proclamation is made once a Month for three Months and then the Lord Chancellour certifies it to the Court where the Plea is depending and after it is Proclaimed again in the same Court that all such whom the said Plea concerns may appear and make their Allegations before the Ordinary whose Certificate of Bastardy is nothing to the purpose unless it come in by Process at the Suit of the Parties And this Bastardy ought to be certified under the Seal of the Ordinary for it is not sufficient to certifie it under the Seal of the Commissary And although the Defendant be certified a Bastard by the Ordinary yet the Certificate shall lose its force if the Plaintiff be afterwards Nonsuit for then the Certificate is not of Record In the Case of Elborough against Allen it was said by Crook that for calling one Bastard generally there is not any sufficient Ground of Action at the Common Law but if there be any special Loss thereby it shall be a good ground of Action at the Comon Law as if a Man be upon Marriage or in treaty for the sale of Land whereby his Title is disparaged Doderidge Justice said That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy and their Judgement is given for the damage which the party had in his birth and for that their Entry is quia laesis est natalitiis And in this Case the Chief Justice said that generally to say J. S. is a Bastard J. S. hath not cause of Action given him thereby but if there be a Temporal cause averr'd the Common Law may proceed therein for though Originally Bastardy be of the Ecclesiastical Jurisdiction not Triable at the Common Law and therefore as in its general nature it is of the Spiritual Jurisdiction so being by its generality no ground of Action at the Common Law yet if one be to sue for a Childs part or sue for the Administration of his Fathers Goods and this be set forth in the Declaration it will maintain an Action at Common Law Doderidge Justice said That to say generally that one called him Bastard is not ground of Action if he doth not shew some special Loss thereby as when a Woman brings her Action and says that she was in Treaty of Marriage and that the Defendant called her Whore this will not maintain an Action unless she say withall that by reason of these words she lost her preferment but Chamberlain Justice said to call a Woman Whore is at this day a sufficient cause of Action for her for that it is punishable by the Statute he also further said that if a Man Libel in the Ecclesiastical Court that he hath Lands by descent and that J. S. call'd him Bastard they may not proceed there or if they do a Prohibition lies He further said that for calling a Man Bastard generally without special Loss alledged Action shall be maintained and Cited a Case in 6 Eliz. Dyer Where a Man recovered red great Dammages for that the Defendant had said that his Father was a Bastard And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not alledge any special cause of Action and yet recovered 7. By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their Mothers Husband were to be accounted legitimate but such as were born in the end thereof were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law and gives us an instance of a Widow in Paris who was delivered of a Child the fourteenth Month after her Husbands death yet the good repute of this Womans continency prevailed so much against the Letter of the Law that the Court Judg'd the causes of Child-birth to be sometimes extraordinary the Woman to be chast and the Child Legitimate Hoc tamen in exemplum trahi facile non oportet as the Gloss there concludes 8. By the Common Law if a Child be born but an hour after the solemnization of Marriage it shall be the Husbands though it were begotten by another Man who was not the Mothers Husband and may be the Heir of him who Married the Mother but a Day
had before are Bastards at the Common Law and Muliers by the Civil Law If a Man hath Issue by a Woman and after marry the same Woman the Issue by the Common Law is Bastard and Mulier by the Ecclesiastical Law Likewise if a man espouse a Woman bigg with Child by another Man and within three dayes after she is delivered of Child by the Common Law this is a Mulier and by the Ecclesiastical Law a Bastard If a Woman Elope and hath Issue in Adultery such Issue is a Mulier at the Common Law and a Bastard by the Ecclesiastical Law yet if the Woman continue in Adultery and hath Issue such Issue are Bastards even by the Common Law But by the Law of the Land a man may not be reputed a Bastard who is born after Espousals unless there be some special matter in the Case as aforesaid But if a man who hath a wife doth during her life take another wife and hath Issue by her such Issue are Bastards by both the Laws for the second Marriage is void 20. A Divorce causa Praecontractus doth Bastardize the Issue so also doth a Divorce causa Consaguinitatis likewise if the Divorce be Causa Affinitatis it doth Bastardize the Issue and the Law is the same in case the Divorce be causa Frigiditatis A Man hath Issue a Bastard and after marries the same Woman and hath Issue by her divers Sons and then deviseth all his Goods to his Children Q. whether the Bastard shall take by the devise But if the Mother of the Bastard make such a devise it is clear the Bastard shall take because he is known to be Child of the Mother 21. B. contracted himself to A. afterwards A. was Married to F. and cohabited with him whereupon B. sued A. in the Court of Audience and proved the contract and Sentence was there pronounced that she should Marry the said B. and cohabit with him which she did and they had Issue C. B. and the Father died It was argued by the Civilians that the Marriage betwixt B. and A. was void and that C. B. was a Bastard But it was resolved by the Justices that C. the Issue of B. was legitimate and no Bastard 22. The Case was wherein a Man was divorced causa Fridigitatis and afterwards took another Wife and had Issue it was argued by the Civilians and also by the Justices whether the Issue were Bastard or not it was adjudged that the Issue by the second Wife was not a Bastard For that by the Divorce the Marriage was dissolved à vinculo Matrimonii and each of them might Marry again But admit that the second Marriage was voidable yet it good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue 23. Upon an information in the Castle-chamber in Ireland against the Bishop of K. and C. B. and others that by Practice and Combination and by undue course of proceedings they endeavoured to prove the said C. B. who was ever before reputed a Bastard to be the legitimate or lawful Son and Heir of G. B. Esq to the disherison and defamation of E. B. who was the sole Daughter and Heir of the said G. B. And upon Oier of this cause the Case appear'd to be this viz. About twenty six years before the exhibiting of this Bill the said G. B. had Issue the said C. B. on the Body of one J. D. who during the life of G. B. was not reputed his Wife but his Concubine and the said C. B. for all the time aforesaid was only accounted the natural Son of G. B. but not for legitimate Afterwards viz. sixteen years after the birth of C. B. his Mother being then living G. B. took to Wife a Lady of good Estate and Reputation with the assent of her Friends by whom he had Issue the said E. B. and died After the death of the said G. B. the said C. B. his reputed Son nor his Mother who was yet living said nothing by the space of nine years but at last they practiced and combined with the said Bishop of K. being of their Kin and with many others to prove the legitimation of the said C. B. by an irregular and undue course to the intent to bastardize and disinherit the said E. B. according to which practice and combination the Bishop without any Suit commenced or moved in any of the Kings Temporal Courts or any Writ directed to him to certifie Bastardy or Legitimation in that Case and which is more without any Libel exhibited in his Ecclesiastical Court touching that matter of his own will and pleasure privately and not convocatis convocandis nine years after the death of the said G. B. took the depositions of many Witnesses to prove that the said G. B. twenty nine years before had lawfully Married and took to Wife the said J. D. Mother of the said C. B. and that the said C. B. was the legitimate and lawful Son and Heir of the said G. B. And these depositions so taken the said Bishop caused to be engross'd and reduced into the form of a solemn Act and having put his Signature and Seal to that Instrument delivered the same to C. B. who published it and under colour of that Instrument or Act declared himself to be the Son and lawful Heir of the said G. B. c. And for this practice and misdemeanour the said Bishop of K. and others were censured and thereupon these points were resolved 1. That although all Matrimonial causes have of a long time been determinable in the Ecclesiastical Courts and are now properly within the jurisdiction and cognizance of the Clergy yet ab initio non fuit sic For causes of Matrimony as well as cause Testamentary were heretofore civil Causes and appertaining to the civil Magistrate as is well known to all Civilians until the Christian Emperors and Kings as an honour to the Prelates of the Clergy did grant and allow unto them the cognizance and jurisdiction of these Cases And therefore the King of England who is and of right ever was the Fountain of all Justice and Jurisdiction in all Causes as well Ecclesiastical as Civil within his own Dominions although that he allow the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertain to their cognizance yet by the Rules of the Common Law he hath a superintendency over their proceedings with power of direction how they shall proceed and of restraint and correction if they do not proceed duly in some cases as is evident by the Writs of several natures directed to Bishops by which the King commands them to certifie Bastardy Excommunication Profession Accouplement en Loyal Matrimony De admit Clericis de Cautione admittenda c. as also by the Writs of Prohibition Consultation and Attachment upon a Prohibition 2. It was resolved that
3. Where the Judgement of the famous Baldus is That Contrahentes Matrimonium cum Authoritate Ecclesiae vigore sententiae Divortii praesumuntur esse in bona fide nec Adulterium â—â—mittunt ibid. nu 17. 11. Although the D. D. are 〈◊〉 divided in this point of second Marriage whilst the Divorced Parties are alive yet the Law generally seems much more to incline to favour such second Marriages where the Divorce is ex causa praecedenti than where it is ex causa subsequenti For when it happens ex causa praecedenti as when the Degrees prohibited are violated Precontract Frigidity in the Man Impotency in the Woman or other perpetual Impediment the Marriage was void and null ab initio it being a Rule and a Truth in Law that non minus peccatum jungere non Conjungendos quam separare non separandâ—s But where the Divorce happens ex causa subsequenti there the Marriage was once good and valid in Law and therefore as some hold indissoluble and that such subsequent cause can have no influence quoad vinculum Mâ—trimonii but only quoad separationem à Mensa Thoro which is but a Partial or Temporal not a Total or Perpetual Divorce A. was Divorced from his Wife for Incontinency he after took another Wife living the first Wife Adjudged the second Marriage was void because the Divorce was but à Mensa Thoro and not à Vinculo Matrimonii Rye and Juliambs Cas More 's Rep. Sanchez says that Quoties Matrimonium dissolvitur si id fit ob utriusque Conjugis perpetuum impedimentum utrique aliae Nuptiae interdicendae sunt Sâ— vero ob alterius tantum impedimentum illi interdicuntur concessa non impedito Licentia ad alias traâ—sâ—undi Sanch. de Matrim lib. 7. Disp 93. nu 37 And again in the same place Viro ratione Frigiditatis separato conceditur Foeminae Licentia Nubendi alii ea viro denegata Et Foeminae ob impedimentum separatae interdicto alio Conjugio id non denegatur sed conceditur viro ibid. c. Laudabilem de Frigid c. 2. in fin 33. q. 1. c. ex literis eod tit Likewise the Summa Astensis hath the same in substance si Arctatio alligetur subaudi quamcunque impotentiam Foeminae statim potest Divortium fieri hac mâ—do vocabantur Matronae fide dignae in Nuptiali opere expertae ar ff de ventr inspect l. 1. verb. igitur c. Et si Mulieres asserant eam non posse fieri Naturaliter Matrem tunc statim potest Divortium fieri dabitur viro Licentia cum alia contrahendi Sum. Astens in l. 8. de Divor propter impotent tit 37. fo 233. as aforesaid yet Tostatus on the 19 th of Mat. saith that Fornicatio non valet simpliciter ad dirimendum Matrimonium sed ad tollendam Cohabitationem Tostati Index verb. Matrimon as appears also by the Canon Law Extra de Divor c. Gaudemus c. Quare facto Divortio says Tostatus again non transeatur ad aliud Matrimonium Tostat ibid. for which he there quotes St. Hierome who in this point is opposed by St. Ambrose Possibly the different constructions that Divines and Lawyers do make of this word Divorce may not be the least reason of the different Opinions in this point for Adam Tannerus as aforesaid tells us That Juristae Divortii voce utuntur pro Dissolutione Matrimonii etiam quoad vinculum ut constat ex toto tit ff de Divortiis Adam Tannerus Tom. 4. Disp 8. de Matrim q. 5. Dub. 5. de Divortio Col. 2232. nu 74. variis de causis solvi posse ut videtur in iisd Legib. apud Greg. Syntag. jur par 2. lib. 9. cap. 5. Theologi tamen ea voce Divortii solum fignificant separationem inter Conjuges aut quoad Cohabitationem aut quoad Thorum Tannerus ubi supra 12. F. being Divorced for Incontinency of the Wife he afterwards Marries P. the Daughter of R. living the first Wife By the whole Court that is a void Marriage for the Divorce is not but à Mensa Thoro and does not dissolve vinculum Matrimonii And by Whitgift Archbishop of Canterbury So also is the Opinion of Divines and Civilians As also in Dame Powels Case against Weeks formerly hinted In Dower it was resolved That a Divorce Causa Adulterii is no Bar of Dower because it is but à mensa thoro not à vinculo Matrimonii And it was said by Daniel that an Elopement is not a Barr of Dower ad ostium Ecclesiae And Judgement for the Plaintiff Agar of Kingston upon the Thames was sued in the Ecclesiastical Court for beating of his Wife and for calling her Whore and was sentenced there to pay his Wife three shillings a Week for her Alimony and divers Fines were imposed upon him for not performing thereof and a Prohibition was granted and also a Habeas Corpus to deliver Agar out of Prison There was a Case of late years where a Man Married the relict of his Great Uncle he Married his Grandfathers Brothers Wife by the Mothers side and it was held lawful it was the Case of one Harison against Dr. Burwell But where a Man Married his Wives Sisters Daughter it was held unlawful and after a Prohibition a Consultation in that Case was granted But Marriages with Cozen Germans are in the said Case of Harrison against Doctor Burwell reported by Sir John Vaughan to be lawful in which Case as also in the Case of Hill against Good reported likewise by the said Sir John Vaughan Chief Justice the Reader may find what Marriages are Lawful and what not what Marriages are prohibited within the Levitical degrees and what Marriages are by Gods Law otherwise prohibited In the Case between Webster and Bury in an Ejectione Firmae a special Verdict was given upon Divorce between Burie and his Wife causa Frigiditatis and that his Wife for three years after his Marriage remansit virgo intacta propter perpetuam impotentiam generationis in viro quod vir fuit ineptus ad generandum and in this special Verdict all the examinations of the Witnesses upon which the Judge in the Ecclesiastical Court was moved to give his Sentence by which the perpetual disability of Burie ad generandum was manifest were read and by which it was pretended that the Issue which he had by a second Wife was illegitimate and this was the doubt of the Jury and it was adjudged that the Issue of the second Wife was Lawful for it is clear that by the Divorce causa Frigiditatis the Marriage is dissolved à vinculo matrimonii and by consequence either of them might Marry after then admitting that the second Marriage was avoidable yet it remained a Marriage until it was Dissolved and by consequence the Issue that is born during such Coverture if no Divorce be in the Life of
reference to the Cognizance of the Temporal and Spiritual Courts in point of Slander 5. Whether Action lies for calling one Quean 6. Prohibition for suing in the Ecclesiastical Court for words tending to the obstruction of a Marriage 7. Matters determinable at Common Law not Cognizable in the Ecclesiastical Courts 8. Whether these words Thou hast taken a false Oath be Actionable and in what Court 9. Whether Action lies at Common Law for saying Thou art a Whore c. 10. Words of Slander to the â—inderance of Marriage are Actionable at the Common Law 11. Defamatory words Thou art a Bawd and keepest a Bawdy house whether and where Actionable 12. To say A. is a Cuckold and that B. had layen with the Wife of A. is a Defamation suable in the Spiritual Court 13. The Difference as to Cognizance between the words Thou art a Bawd and I will prove thee a Bawd and the words Thou keepest a House of Bawdry 14. To say Thou art a Drunkard or a Drunken Fellow whether such words are suable in the Ecclesiastical Court 15. The words he is a Cuckoldly knave are suable not in the Temporal but in the Ecclesiastical Court 16. Whether the calling of Pimp Common Pimp be Actionable and in what Court 17. Welch Jâ—de expounded to be Welch whore and cognizable in the Ecclesiastical Court 18. Whether the words Quean or Base Quean be Actionable in the Ecclesiastical Court 19. Action in that Court for Scandalizing a Parson 20. Whether Action lies in the Ecclesiastical Court for saying of one that kept a Victualling house that she kept a House of Bawdry 21. Whether the words Thou art a Pander be Actionable at the Common Law 22. Church-wardens presentment of a Feme Covert upon a Common Report for Adultery and Action of Defamation brought in the Ecclesiastical Court thereon 23. Whether Action upon the Case for words lies against an Infant of Seventeen years of age 24. Several other Cases at the Common Law pertinent to this Subject of Defamation what of them cognizable in the Ecclesiastical Court and wherein the Prohibition lies or not 1. DEFAMATION properly so called is the utterance of Reproachful Speeches with intent of raising an ill Fame of the Party so reproached Defamare est in mala Fama ponere Bart. l. turpia ff de Legat. 3. This extends it self to Writing as by defamatory Libels as also to Deeds as by Reproachful Postures Signs and Gestures Lindw c. authoritate verb. quacunque in gloss de Sent. Excommunicat And as for the most part it proceeds of malice implying matters either of Crime or Defect so it generally aims at some prejudice or dammage to the Party defamed Whatever Cognizance the Temporal Laws of this Realm do take of Defamations by vertue of Prohibitions and Actions upon the Case yet it will not be denied but that the Cognizance of Defamations where they are duly prosecuted doth properly belong to the Spiritual Law specially where the matter of the Defamation is only Ecclesiastical 2. In all causes of Defamation the Party defamed had his Election by the Civil Law whether he would prosecute the Defamer ad Vindictam publicam or ad privatum interesse the former whereof was made choice of where the Defamed aimed more at the Defamers shame than his own Interest and chose rather to reduce him to a Recantation than augment his Cash by his own Credit 's diminution l. in constitutionib § ult ff L. Cornel. The other viz. ad privatum interesse was chosen by such Defamed ones as valued their Credit at a certain Rate and chose rather a Pecuniary Compensation than an unprofitable Recantation aiming more at their own private satisfaction than at the Defamers publick Disgrace l. stipulationum § plane ff de verbor obligat l. si quis ab alio ff de re judic But both of these the Defamed could not have for having determined his Election he was therewith to rest satisfied only having obtained a Sentence against the Defamer for his Recantation or publick Disgrace by prosecuting him ad publicam vindictam he might possibly have in Lieu thereof a pecuniary Recompence by way of Commutation The Prosecution ad publicam vindictam was left to the determination of the Ecclesiastical Jurisdiction the other to the Cognizance of the Secular Much in conformity to what the Laws of this Realm in Cases of Defamation seem to say viz. where the Prosecution is meerly for the Punishment of Sin and Money not demanded there the Spiritual Court shall have the Cognizance But where Money is demanded in satisfaction of the Wrong there the Temporal specially if the Defamer undertake to justifie the matter or the words express or imply a Crime belonging to the Cognizance of the Common Law These Actions of Defamation are of a higher Nature than they seem primo intuitu to be a mans good Name being Equilibrious with his Life and therefore the Law calls them Actiones praejudiciales that is such as draw lesser Causes to them but themselves are drawn of none 3. One Libelled against another in the Ecclesiastical Court for saying That he was a Drunkad or a Drunken Fellow and an addle Drunken Fellow and by the opinion of the whole Court a Prohibition was granted and for such words a Prohibition was granted in C. B. in the Case of Martin Calthorp 4. One moved at the Barr for a Prohibition to the Ecclesiastical Court on a Suit there depending for calling one Bawd Jones Justice conceived that these Differences ought to be observed where a Man calls a Woman Whore or such like Slander for which Suit lies in the Ecclesiastical Court against the Party if the matter appear in that Case Suit lies for Slander there and no Prohibition lies è contra if a man be called Thief Traytor or the like whereon no Suit lies for the Principal in the Ecclesiastical Court but at the Common Law if one be sued for such Slander in the Ecclesiastical Court a Prohibition lies If a man call one Bawd for which Suit lies at the Spiritual Court and also at the Common Law there if the Suit be for Slander in the Ecclesiastical Court in that case no Prohibition lies for the Party hath Election to sue in which Court she please So if a Woman be Slandered in her Reputation whereby she is hindered in her Marriage she may sue either at the Common Law or in the Spiritual Court for Slander And lastly if a man speak any words for which no Suit lies at Common Law nor are such as concern any thing whereof the Ecclesiastical Court takes Cognizance it seems that in such Case if Suit be in the Spiritual Court for Slander as for Convitia a Prohibition lies as for calling one Knave Drunkard or the like Quaere of that the Chief Justice agreed to that the others said nothing therein 5. A Suit was commenced in the Ecclesiastical Court where the Lilbel was that he called the Plaintiff
After Verdict upon Not Guilty found for the Plaintiff it was moved in Arrest of Judgment by Grimston that these words are not Actionable For for calling Whore there lies not any Action and to say that her Children by her former Husband are Frambishes Bastards is repugnant in it self for they cannot be Bastards which were born in the time of her former Husband But all the Court held that the Action well lies For to say of a Widow who is in Comnunication of Marriage with another that she plaid the Whore in her former Husbands time is a great Discredit And to say that her Children are Bastards although in truth they cannot be Bastards in Law yet in Reputation they may be so is cause of loss of her Marriage and that none will marry with her wherefore it was adjudged for the Plaintiff 11. Action upon the Case Whereas he keepeth an Alehouse Licenced by Justices of the Peace that the Defendant to scandalize the Plaintiffs Wife spake these words of her Hang thee Bawd Thou art worse than a Bawd Thou keepest a House worse than a Bawdy house And thou keepest a Whore in thy House to pull out my Throat Upon not guilty pleaded found for the Plaintiff Stone moved in Arrest of Judgment that these words are not Actionable but agreed that for saying One is a Bawd and keeps a Bawdy house Action lies because it is a temporal Offence for which the Common Law inflicts punishment But to call one Bawd without further speaking an Action lies not no more than to call one Whore But it is a Defamation punishable in the Spiritual Court And to say That be keeps a House worse thaâ— a Bawdy house hath not any intendment what he means thereby wherefore the Action lies not And if it be intended that such words should hinder Guests from coming thither being an Alehouse the Husband only ought to have brought the Action And as to that the Court absente Richardson agreed But for the other words they held the Action lies by the Husband and Wife for the slander to his Wife and it is as much as if he had said that she keepeth a Bawdy house wherefore it was adjudged for the Plaintiff 12. A prohibition was prayed bâ—cause A. and his Wife sued in the Ecclesiastical Court for Defamation and speaking these words of the Plaintiff He was a Cuckold and a Wittal which is worse than a Cuckold and that Aylsworth had layen with Ayloffs Wife And for these Defamatory words he sued there and because it was alledged that for these words being but words of Spleen Prohibitions had been usually granted day was thereupon given until this Term to shew cause why a Prohibition should not be granted and divers presidents were shewd that for calling one Cuckold or Whore Prohibitions have been granted But now upon advertisement all the Court agreed that no Prohibition should be granted but that the Ecclesiastical Court should have Jurisdiction thereof For although they agreed that there ought not to have been any Suit for the first words they being too general yet being coupled with a particular shewing that the Wife committed such an Offence with such a particular person they be not now general words of spleen in common and usual discourse and parlance But they held it was a Defamation suable in the Spiritual Court whereupon the Prohibition was denied Brownlow chief Protonotary produced on that occasion several presidents where Prohibitions had been granted to stay Suits for such words viz. Trin. 15. Jac. rot 2260. Purchas vers Birrel for that he was presented at several enquests within his Parish for being a Drunkard and a Barretor And Pasch 6. Jac. rot 397. Prohibition to stay a Suit for calling a Parson Hedge-Priest And Mich. 21. Jac. Barker vers Pasmore She is a Quean and a tainted Quean Prohibition granted 13. H. Prays a Prohibition to stay a Suit in the Spiritual Court of Defamation for speaking these words Thou art a Bawd and I will prove thee a Bawd And because these are words properly dererminable in the Spiritual Court and for which no Action lies at the Common Law a prohibition was denied But for saying Thou keepest a house of Bawdry this being matter determinable at Common Law by Indictment Suit shall not be in the Spiritual Court vid. 27 H. 8. and Co. lib. 4. fo 20. 14. Prohibition was prayed to the Ecclesiastical Court to stay a Suit there for Defamation for these words Thou art a Drunkard or drunken fellow And by the opinion of Croke Jones and Berkley a Prohibition was granted For these words do not concern any Spiritual matter but meerly Temporal and they be but Convitium Temporale and a common phrase of brawling for which there ought not to be a Suit in the Spiritual Court and so it was held in Martin Calthorp's Case in C. B. but Richardson doubted thereof because the Spiritual Court as well as the Temporal may meddle with the punishment of drunkenness so it is not meerly Temporal But he assented to the grant of a Prohibition and the Party may if he will demurr thereto whereupon a Prohibition was granted 15. Prohibition was prayed by Bulstrod for Gobbet to stay a Suit in the Spiritual Court for Defamation in speaking these words He is a Cuckoldly Knave and cited presidents that for saying He is a Knave and a cheating Knave Suit being in the Spiritual Court a Prohibition was granted upon good advisement and the Court said that president is not like to this Case for there was not any offence wherewith the Spiritual Court ought to meddle but in this Case for these words it is properly to be examined and punished there pro reformatione morum for it is a disgrace to the Husband as well as to the Wife because he suffers and connives at it whereupon absente Richardson the Prohibition was denied Again it was moved that this should be granted upon the Statute of 23 H. 8. because he was sued in the Court of the Arches which is in the Archbishops Jurisdiction and the words were spoken at Thistleworth in London Diocess as appeared by the Libel But Jones said that he was informed by Dr. Duck. Chancellor of London that there hath been for long time a composition betwixt the Bishop of London and the Archbishop of Canterbury that if any Suit be begun before the Archbishop it shall be always permitted by the Bishop of London so as it is quasi a general License and so not sued there but with the Bishops assent and for that reason the Archbishop never makes any Visitation in London Diocess And hereupon also the Prohibition was denied 16. Action for that the Defendant had said of and to the Plaintiff being of good same and one who had served as Captain in the Wars haec verba in London Thou art a Pimp averring that in London that word was known to be intended a Bawd and further said that he
Church This double value shall be accounted according to the very or true value as the same may be let and shall be tried by a Jury and not according to the extent or taxation of the Church Co. par 3. Inst cap. 71. And albeit the Clerk be not privy to the Simoniack Contract yet it seems the Patron shall pro hac vice lose his Presentation But the Title of the rightful and uncorrupt Patron shall not be sorscited or prejudiced by the Simoniacal Contract of an Usurper albeit the Clerk be by his presentation admitted instituted and inducted nor entitle the King to present 4. The Church notwithstanding the Admission Institution and Induction becomes void whether the Clerk presented were a party or privy to the corrupt and Simoniacal Contract or not But Sir Simon Degee in his Parson's Counsellor puts the material Question viz. Whether the Clerk that is presented upon a Simoniacal Contract to which he is neither party nor privy be disabled for that turn to be presented by the King to that viz. the same Church In order to the resolution whereof he acquaints us with a Case reported wherein it was adjudged that if a Clerk were presented upon a Simoniacal Contract to which he was neither party nor privy that yet notwithstanding it was a perpetual disability upon that Clerk as to that Church or Living The like in another Case where B. the Church being void agreed with the Patron to give him a certain Sum of Money for the Presentation B. presented C. who knew nothing of the Simoniacal Contract till after his Induction In this Case it seem'd by Warburton Justice that C. was disabled quoad hanc Ecclesiam In which Case it was clear that the grant of the Presentation during the vacancy was meerly void that B. presented as an Usurper that C. was in by the corrupt Contract and that were it not for the same the Patron would not have suffered the Usurpation In further confirmation hereof it is also reported to us that Sir Edward Coke affirmed it hath been adjudged that if a Church be void and a Stranger contracts for a Sum of Money to present one who is not privy to the Agreement that notwithstanding the Incumbent coming in by the Simoniacal Contract is a person disabled to enjoy that Benefice although he obtain a new presentation from the King for that the Statute as to that Living hath disabled him during Life Notwithstanding all which Premises Sir Edward Coke in his Comment upon the said Statute of 31 Eliz. asserts it to have been adjudged in the forecited Case of Baker and Rogers that where the Presentee is not privy nor consenting to any such corrupt Contract there because it is no Simony in him he shall not be adjudged a disabled person within the said Act for the words of the Statute are And the person so corruptly giving c. And so says he it was resolved Mich. 13. Jac. Where the Presentee is not privy nor consenting to any corrupt Contract he shall not be adjudged a disabled person within the Act because it is no Simony in him Coke Inst par 3. cap. 71. Also it was so resolved in Doctor Hutchinsons Case by the whole Court viz. That if a Clerk be presented upon a corrupt Contract within the said Statute although he be not privy thereunto yet his presentation admission and induction are all void within the Letter of that Statute but not within the clause of disability within the same Statute 5. The Contracts which are commonly held corrupt and Simoniacal may be diversified almost into as many kinds as transferences and proprietary negotiations are capable of but those which have been most in practice as appears by the Cases reported in the Law have been by way of unlawful purchasing the next Advowson by Exchanges by Resignation Bonds by Matrimonial compacts by contracts remote and conceal'd from the Presentee by Obligations of an indirect nature and the like To the purposes aforesaid it hath been held Simony for a Parson to promise his Patron a Lease of his Tithes at such a Rent in case he would present another Parson into his Benefice with whom he was to exchange albeit that other was not privy to the Contract he making the Lease after It was likewise held Simony for a Father to present his Son by vertue of a purchase of the next Advowson which he made in the presence of his Son a Clerk when the Incumbent was not like to live by reason of a Sickness whereof he soon after died Otherwise in case the purchase had been made in the absence of the Son as is hereafter mentioned But per Hutt it was held Simony to purchase the next Advowson the Incumbent being sick The like in Winchcombes Case against the Bishop of Winchester and Puleston a Case hereafter often Margined on several accounts where it was held Simony in one Say who was presented upon a Contract which he made with the Patron the Incumbent being then sick for Ninety pound to present him when the Church should be void And as to Resignationbonds Sir Simon Degge affirms That in the case of Jones and Lawrence the sense of the Court was that if a Man be preparing his Son for the Clergy and have a Living in his disposal which falls void before his Son is capable thereof he may Lawfully take a Bond of such person as he shall present to resign when his Son becomes capable of the the Living otherwise in case the Patron take a Bond absolutely to resign upon request without any such or the like cause as for avoidance of Pluralities Non-residence or other such reasonable design The like you have in Babbington and Wood's Case hereafter mentioned So that it seems Bonds and Obligations given and taken upon just and honest grounds to resign are not in themselves Simoniacal Otherwise where ther 's is corruption in the case accompanied with some subsequent Act in pursuance thereof And although presentations made upon Simoniacal Bonds and Obligations are void in Law yet such Bonds themselves though corrupt and Simoniacal are not made void by the Statute of 31 Eliz. 6. B. brought Action against C. upon an Obligation The condition whereof was that whereas the Plaintiff did intend and was about to present the Defendant to the Benefice of Stow if the Defendant at the request of the Plaintiff should resign the same to the hands of the Bishop of London then the Obligation to he void The Defendant demanded Oyer and demurr'd and adjudg'd for the Plaintiff for the resignation might be upon a good intention to prevent pluralities or some other cause and it shall not be intended Simony if it be not specially pleaded and averr'd and Mich. 37. and 38. Eliz. Between Jones and Lawrence it was adjudg'd accordingly and affirmed an Error which the Court viewd and thereupon Judgement was given for the Plaintiff 7.
answers nothing to the Simony for the Protestation is not any answer wherefore Judgment was given for the Plaintiff 17 F. Libels in the Ecclesiastical Court for Tithes and a Prohibition was prayed upon a Suggestion that he came to the Church by Simony By the Court a Prohibition ought to be granted upon a surmise only that he came to the Church by Simony Then Honden shewed that it was found by verdict in the Kings Bench that he came in by Simony And upon that verdict there was a Decree in the Court of Wards accordingly And then the Court inclined to grant a Prohibition And the Case here was that F. being convicted of Simony the King presents Clapthorn who was Admitted Instituted and Inducted And afterwards he takes another Benefice above the value of 8 l. by which the other was void Yet by the Assent of the Lord Windsor Patron F. continued possession And by Richardson he cannot be any way removed until Lapse incurr 18. It was said by the Court in Sr. John Paschall's Case against Clark upon evidence that if the Patron present one to the Advowson having taken an Obligation of the Presentee that he shall resign when the Obligee will after three Months warning that that is Simony within the Statute of 21. Eliz. cap. 16. 19. A. Scised of a Mannor with an Advowson Appendant S. comes to A. and promises that if he would present him c. after the death of the now Incumbent he would give him Seventy pounds to which he agreed And upon that it was agreed between them that the next avoidance shall be granted to B c. the Incumbent dies B. presents S. who continues lacumbent from 27 Eliz. until the 7 th of King James Than A. grants the Mannor cam pertinent to Winchcombe in Fee S. the Incumbent dies 7 Jac. And the King presents Pulleston by the Title of Simony and Winchcombe brought a Quare Impedit and adjudged that it doth not lie In which Case two points were resolved 1. That that is Simony First because there was a corrupt Contract for the Advowson Note that in the Stat. of 31 Eliz. there is not word of Simony for by that means then the Common Law would have been Judge what should have been Simony and what not Secondly although that the prochein Avoidance might be bought and sold bona fide without Simony yet it was so granted to B. to perform the corrupt Contract 2 Jac. was vouch'd that it the Father purchas'd the prochein Avoidance and presents his Son after the death of the Incumbent that is not Simony and that it was accordingly judged in 42 and 43 Eliz. It was Smith and Shelborns Case But by Hubbard that if in the grant of the Prochein Avoidance it appears that it was to the intent to present his Son or his Kinsman and it was done accordingly that is Simony In the 7th Jac. In the Exchequer Calvert against Parkinson The Cosin of C. being Clerk comes to the Grantee of the prochein Avodance and promises him Twenty pounds and Twenty pounds per an if he will present C. to the Church quando c. C. not knowing any thing of the Contract is presented accordingly This is Simony Fortiori in this Case where S. himself who was to be presented was party to the first motion of the Contract for presentation 2. It was resolved that the death of the Simoniacal Incumbent doth not hinder but that the King may well present for the Church was never full as to the King and that Turn is preserved to the King by force of the Statute yet it seems the Church is so full that a Stranger may not present for usurpation for it is not like 7 Rep. 28. where the King is to present by lapse And there are many Cases wherein the Church may be full or void in effect when there is a Simoniacal Incumbent Hubbard said that if A. be obliged to present B c. and he presents by Simony yet the Obligation is forfeited c. The rightful Patron may have a Quare Impedit after the Six months against the Incumbent of an usurper that is in by Simony And by the Court to say the Church was full for Six months is no plea when he is in by Simony Warburton and Hutton cited Doctor Hutchinsons Case 10 Eliz. A Parson preferrs his Bill for Tithes the Parishioner pleads that he was presented by corruption c. and by Simony and a prohibition was granted notwithstanding that the Parson pleaded pardon of the Simony by the King and it seem'd that it was now triable by the Common Law Note 7 H. 7. 37. and Mich. 40. and 41 Eliz. Gregory against Ouldham In debt upon an Obligation to perform certain Covenants which in truth were Simoniacal Contracts and the Plaintiff recovered for it was said that that obligation is collateral and the Law does not at all look upon or take notice of the Simony eo nomine for it is not once named in the Statute but only corrupt giving c. 20. In debt upon an obligation it was said that it was made upon a Simoniacal contract for presentation to the Church with the cure of Souls and so it was for Simony All that was averr'd the Court held to be matter debors and not appear'd within the Deed and for that the Plaintiff had Judgement For no such averment is given by the Statute Note the Statute doth not make the Bond Promise or Covenant void but the Presentation And so adjudged Pasch 40. Eliz. Rot. 1745. C. B. Case of Gregory against Oldbury Co. Inst par 3. cap. 71. 21. If an innocent Incumbent be in by a Simoniacal Contract to which he was no way privy he is not Simoniacus though Simoniace promotus and as he is not Simoniacus so neither Perjurus for Simony seldom goes without some kind of Perjury An Action was brought upon 5 Eliz. for Perjury before one of the Masters of Chancery who had power to take an Oath Adjudged Quod nihil cap. per breve And the reason was because he does not shew that the Oath was in Court. By Whitlock they were called Masters of Chancery because they were Priests and Clergy-men in ancient time and that was the reason that the Lord Chancellor had the disposal of the petty Offices of the King for the preferment of these Clerks that was also the reason that they could not Marry until they were enabled by the Stat. c. 22. Parson L. was convented before the High Commissioners and they would put him to his Oath touching Simony supposing it to be committed by him And a Prohibition was granted that none shall be compelled to accuse himself upon his Oath where he is to incurr a temporal punishment at the Common Law or a temporal loss as in that case of his Church So for Vsury Note Dyer 175. in the Margin And Cook Chief Justice vouch'd 10 Eliz. Smiths Case an Atturney of
that Court The High Commissioners would put him to his Oath for hearing Mass And a Prohibition was granted for by that he is to lose One hundred pounds by the Staute and a Prohibition was now granted by the Court 23. If a Stranger having no Title present per tort to a Church being void Simoniacally and Six months pass yet the true Patron may after present for the Statute hath made such Presentation Institution and Induction void and so he is no Incumbent nor is the Church full Likewise if a Man be Presented Instituted and Inducted by Simony to a Church although it be void as to the King and as to the Parishioners yet it is not void as to an usurper for he that hath no right shall not present thereunto 24. To avoid the detestable Sin of Simony because buying and selling of Benefices is execrable before God it is therefore ordained by the Injunctions of King Ed. 6. An. 1547. That all such persons as buy any Benefices or come to them by fraud or deceit shall be deprived of such Benefices and be made unable at any time after to receive any other Spiritual promotion And such as do fell them or by any colour do bestow them for their own gain or profit shall lose the right and title of Patronage and Presentment for that time and the gift thereof for that vacation shall appertain to the Kings Majesty 25. The Oath of Simony is as followeth viz. I. A. B. do swear that I have made no Simoniacal Payment Contract or Promise directly or indirectly by my self or by any other to my knowledge or with my consent to any person or persons whatsoever for or concerning the procuring or obtaining of the Rectory or Vicarage of A. in the Diocess of London Nor will at any time hereafter perform or satisfie any such kind of payment contract or promise made by any other without my knowledge or consent So help me God c. 26. P Parson of R. in the County of W. sued for Tithes in the Ecclesiastical Court before the Ordinary and the Defendant here pleads that the same Parson was presented upon a Simoniacal Contract and for that his Presentation Admission and Institution was void by the Stat. of 31 Eliz. the Simony was for that it was agreed between the said Parson and another that was Brother to the Bishop of L. and C. who was Patron of the same Church that if he should procure three several Grants of three several next Avoidances to them severally granted to surrender their said several Grants and procure the said Bishop to present him when the Church became void it being then full of an old Parson being mortally sick that he would make to him a Lease of parcel of the Tithes of his Rectory and the Brother of the said Bishop procured the said Grantees to surrender their several Grants accordingly the Church being then full And also after when the Church became void he procured the said Bishop to present him according to the first Contract and then the said P. made a Lease to him of the Tenths and after sued others of his Neighbours in the Ecclesiastical Court for Tithes who pleaded the said Simoniacal Contract and here Nicholas Serjeant suggested that the Judges Ecclesiastical would not allow of this Plea there but the Court would not give credit to this suggestion but said that if the Ecclesiastical Court make exposition of the Statute of 31 H. 8. against the intent of it that then they would grant a Prohibition or if they should deny to allow of this Plea and for that advised him that his Client might offer this Plea another time to them and if they denied to grant that they would grant a Prohibition 27. The Patron of a Benefice may be sued in the Ecclesiastical Court for presenting his Clerk who is also inducted by Simony for the Statute of Simony takes not off the Ecclesiastical Jurisdiction from punishing the party pro salute animae And where the Parson is party or privy to the Simony he shall be perpertually disabled Also if money or other reward be given for the Presentation be it with or without the agreement or knowledge of the Incumbent yet it shall always disable him from enjoying that Church In Wilsons Case against Bradshaw it was said by Doderidge Justice that Simony is a contract either with the Patron to present or with the Ordinary to institute and if it be not one of these it is not Simony by the Common Law Simoniacus is he which makes such a contract or promise and he is disabled to take any other Benefice and shall be deprived of the Church in which he is But Simoniace promotus is he whose friend without his privity or knowledge gives money to the Patron or Ordinary for his Presentation or Institution and he shall be deprived of the Benefice to which he is corruptly promoted but not incapable of any other nor of that if he shall have it duely again and every corrupt contract for aright to present is Simony 28. In a Prohibition the Case A. seised of the Advowson of the Church of B. the Church being void C. before the general pardon 39. Eliz. contracted with him for the Avoidance who for 100 l. granted it to him and he by colour of this Grant presented his Brother to the avoidance This was held to be Simony in the Grantee the Incumbent although he was not privy to the Simony at the first and Simony was there defined to be Voluntas sive desiderium emendi vel ven dendi spiritualia vel spiritualibus adhaerentia vel anxa Or thus viz The Church being void B. contracted with the Patron for 180 l. to have the Presentation and thereupon presented W. his Brother who knew nothing of the Simoniacal contract till after his Induction notwithstanding he was deprived in the Ecclesiastical Court because he was Simoniace promotus and it was held in this Case that if an usurper present by Simony the Clerk is punishable in the Ecclesiastical Court for the Simony although the Patron doth recover the Advowson and the Presentation 29. In the Case between the King and the Bishop of Norwich and Saker and Cole It was said by Coke Chief Justice that if a Church be void and a stranger without the privity of the after-Incumbent procures the Patron to present him upon a Simoniacal contract although that the Alter-Incumbent be not privy to the contract yet he comes in by Simony and so it is where the Incumbent makes Simoniacal contract with the Friend or Wife of the Patron and the Patron knows not thereof and the Incumbent be presented by the means of him with whom the Contract was made it is Simony within the Statute of 31 Eliz. and the King shall present 30. A man who was presented by Simony Libelled in the Ecclesiastical Court for Tithes The Question was whether the Simony
should be tried in the Ecclesiastical Court or by the Common Law the point was not resolved Note there Simony is defined to be studiosa voluntas emendi vel vendendi Spiritualia vel Spiritualibus annexa and it is either Mentalis vel Conventualis of both which the Ecclesiastical Law may Judge but the Temporal Court only of Conventual Simony 31. In Sir William Boyers Case for a Prohibition to the High Commission Court for their examining there upon Oath in Case of Simony it was said by Coke Chief Justice that Simony is worse than Felony it is an enormous offence if money be paid for to present one to a Benefice although it be not paid to the Patron neither had he any knowledge of it yet the Incumbent for this shall be avoided and the Patron also shall lose his presentation pro hac vice The Statute of 31 Eliz. cap. 6. is so strongly penn'd against the Incumbent that if the Patron be privy unto it he shall also be punished an Action of Debt was brought in the C. B. the Defendant in Barr pleaded that the same was entered for payment of money for Simony yet the Bond was held good and we are not to take any notice of Simony this being punishable in the Ecclesiastical Court and if they there meddle only pro salute Animae they are not then to be prohibited Otherwise it is when they will there examine the person upon an Article tending to the Title of the Patronage there in such case a Prohibition lies 32. In case of the King against Zakar and others It is said that if one be presented by Simony and the same person afterwards obtain a presentation from the King this is not good for he is now a disabled person to take this Benefice he hath a leprosie upon him by the Statute of 31 Eliz. cap. 6. Like unto that of Gehazi And Coke Chief Justice there declar'd that notwithstanding the King saith that the said Incumbent shall still continue yet the King shall have the next presentation 33. The Lord Winsor seized of an Advowson granted the next avoidance thereof to Doctor G. the Church void R. F. the Father of H. F. dealt with Doctor G. to permit the Lord Winsor to present H. F. who know not of the agreement who was Presented Instituted and Inducted accordingly Resolved that this was Simony and that the King was to present by the Statute of 31 Eliz. The King presented J. S. who was Instituted and Inducted R. F. the Father sued J. S. before the High Commissioners for Misdemeanors and procured him to be deprived and Ten days after procured a Grant of the next avoidance to J. N. and after the deprivation within Ten days procured the said J. N. to present the said H. F. c. Resolved that the said presentation of the said H. F. was meerly void and that he was a Person disabled by the express words of the Statute to accept of that Benefice 34. For a Prohibition upon a Suit for Tithes supposing the Parson had come in by Simony and thereby the Church void and the Tithes not belonging to him it was resolved by the Court a Prohibition did not lie for that Simony might more aptly be tried in the Ecclesiastical Court 35. The Incumbent of a Church being sick the Father contracts with the Patron in the presence of his Son for the next avoidance for the Son and agreed to give him One hundred pounds The Grant is made the Incumbent died the Son is Presented Instituted and Inducted being sued for Simony in the Ecclesiastical Court he prays a Prohibition and alledges the General Pardon 39 Eliz. which is after the Institution and Induction wherein Simony is not excepted In this Case it was resolved 1. That although the Pardon discharges the punishment of Simony yet he may be examined of it by the Ordinary and deprived for it But it was 2 Resolved in this Case there was no Simony for the Father might buy the next avoidance and present his Son and it is not Simony in any to buy an Advowson therefore the Prohibition was granted 36. In Debt upon an Obligation to perform Covenants That T. B. Son of W. B. should marry A. the Defendants Daughter In consideration of which marriage the Defendant amongst other Covenants Covenanted that he would procure the said T. B. to be Presented Instituted and Inducted into such a Benefice upon the next avoidance of the Church and the breach was assigned for non performance of the said Covenant in procuring him to be Admitted Instituted and Inducted It was demurred to by the Defendant because the Covenant is against Law being a Simoniacal Agreement and a Bond for performance thereof is not good Resolved it it had appeared to have been that in consideration of the Marriage of his Son he would procure him to be Admitted and Instituted into such a Benefice that had been a Simoniacal Contract and had avoided the Obligation but here this Covenant is not in consideration of the former Covenant nor depending thereon but it is a meer distinct Covenant of it self and independent upon the former and without a special averring or shewing that it was a Simoniacal Contract it shall not be intende but it may be a Covenant upon a good consideration And it was adjudged for the Plaintiff 37. In the forsaid Case of the King against Zakar alias Secker and others it was said by Coke Chief Justice that it is put for a Rule in Green's Case that if one presents Simaniace to a Church of the Kings and the King afterwards presents jure Simaniace this is a void Presentment because he hath mistaken his Title but he ought to present jure Patronatus not ratione Simoniace Presentatus And as to the disability of a Simoniacal person by the State of 31 Eliz. cap. 6. Four things are to be observed upon this Statute 1. The Presentation to be void 2. The King to have this Presentment 3. A Fine to be imposed by way of Forfeiture 4 The party presented to be utterly disabled For where there is matter of Simony if there be Fraud in the Incumbent or if Money be given for the Presentation though it be unknown to the Incumbent to this let the Patron look the Incumbent shall be removed In this Case the whole Court agreed clearly in this that the person party presented by Simony the presentation is meerly void and that the so presented is utterly disabled for ever by the Statute of 31 Eliz. c. 6. to take the same Benefice to which he is presented by Simony and that he is incapable to have another presentation to the same Benefice 38. The words Present or Collate in the Stat. of 31 Eliz. c. 6. are not intended says the Lord Coke onely where the person presenting or collating hath right to present or collate but also where any person or persons Bodies politick or corporate do usurp and
He may have a Writ out of Chancery to Absolve him 14 H. 4. fol. 14. And with this agrees 7 Ed. 4. 14. 2 When he is Excommunicated against the Law of this Realm so that he cannot have a Writ de Cautione admittenda then he ought Parere mandatis Ecclesiae in forma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra Jus formam Juris i. e. Communis Juris But if he shew his Cause to the Bishop and request him to assoil him either because he was Excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have as the Lord Coke sayes an Action sur le Case against the Ordinary and with this agrees Dr. Stu. lib. 2. cap. 32. fo 119. 3 If the party be Excommunicated for none of the Causes mentioned in the Act of 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is Cited before the Dean of the Arches in cause of Defamation for calling the Plaintiff Whore out of the Diocess of London against the Statute of 23 H. 8. and the Plaintiff hath Sentence and the Defendant is Excommunicated and so continues Forty daies and upon Certificate into Chancery a Writ of Excommunicato Capiendo is granted and the Defendant taken and Imprisoned thereby That he shall not have a Prohibition upon the Statute of 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called De Cautione admittenda de parendo Mandatis Ecclesiae when the Defendant is taken by the Kings Writ De Excommunicato Capiendo and to assoil and deliver the Defendant 25. Where the Court of B. R. was moved for the Bailing of one who was taken by force of a Capias de Excommunicato Capiendo upon the Statute of 5 Eliz. cap. 23. and came to the Barr by a Habeas Corpus Williams Justice He that is taken by force of a Capis de Excommunicato Capiendo is not Bailable upon the Statute of 5 Eliz. cap. 23. which Statute doth only dispense with the Forfeiture of the Ten pounds and such a person is not Bailable and as to the other matter the same remains as it was before at the Common Law and the Statute of 5 Eliz. dispenseth only with the penalty of Ten pounds Yelverton Justice of a contrary Opinion and that in this case he is Bailable Flemming Chief Justice This is a Case which doth deserve very good consideration and that therefore he would consider well of it and also of the Statute of 5 Eliz. before he would deliver his Opinion Williams Justice clearly he is not Bailable in this Case Afterwards at another time it was moved again unto the Court to have him Bailed Yelverton Justice That he is Bailable and so was it Resolved in one Keyser's Case where he was taken by a Writ De Excommunicato Capiendo brought hither by a Habeas Corpus and upon Cause shewed he was Bailed by the Court de die in diem but neither the Sheriff nor any Justice of Peace in the Countrey can Bail such a one but this Court here may well Bail as in the Case before de die in diem It was further alledged here in this That in the Ecclesiastical Court they would not there discharge such a one being taken and Imprisoned by force of such a Writ De Excommunicato Capiendo without a great Sum of Money there given and a Bond entered into for the same otherwise no discharge there Yelverton Justice and the whole Court The Bishop ought not to 〈◊〉 such a Bond for the performance of their submission The Rule of the Court here in this was That upon their submission they shall be Absolved without any such Bond entred into Flemming Chief Justice They shall Absolve them and if they perform not according to their promise and undertaking they 〈…〉 again by the Writ De Corpore Excommunicato Capiendo but the Bishop is to take no Bond of them for their Absolution to perform their Submission the taking of such Bond by them being against the Law And as to the Bailment all the Judges except Williams Justice did agree that he was Bailable and so by the Order and Rule of the Court he was Bailed vid. Bulstr Rep. par 1. fo 122. Pasch 9 Jac. in Case of Hall vers King CHAP. XLIII Of the Statutes of Articuli Cleri and Circumspecte agatis 1. Several Statute-Laws relating to Ecclesiastical persons and things enacted under the Title of Articuli Cleri in the Ninth year of King Ed. 2. 2. Some other Statute-Laws touching Ecclesiastical matters made the Fourteenth year of King Ed. 3. 3. The Ratification and Confirmation of the 39 Articles of Religion The Subscription required of the Clergy 4. Certain Cases wherein a Prohibition doth not lie to the Ecclesiastical Courts according to the Statute of Circumspecte agatis made the Thirteenth of King Ed. 1. And in what case a Consultation shall be granted 1. THese are certain Statutes made in the time of King Ed. 1. and Ed. 2. touching Persons and Causes Spiritual and Ecclesiastical By the latter of these it is Enacted 1 That upon demand of Tithes Oblations c. under that Name a Prohibition shall not lie unless the demand be of money upon the Sale thereof 2 That upon debate of Tithes amounting to a Fourth part of the whole and arising from the Right of Patronage as also upon demand of a Pecuniary penance a Prohibition may lie Not so in case of demand of money voluntarily accorded unto by way of Redemption of Corporal penance enjoyned 3 That upon demand of money Compounded for in lieu of Corporal penance enjoyned for the Excommunication for laying violent hands on a Clerk a Prohibition shall not lie 4 That notwithstanding any Prohibition the Ecclesiastical Jurisdiction may take cognizance and correct in Cases of Defamation and the money paid for redeeming the Corporal penance thereon enjoyned may receive notwithstanding a Prohibition be shewed 5 That no Prohibition shall lie where Tithe is demanded of a Mill newly erected 6 That in cases of a Mixt cognizance as in the Case aforesaid of laying violent hands on a Clerk whereby the Kings Peace is broken and such like the Temporal Court may discuss the same matter notwithstanding Judgment given by the Spiritual Court in the case 7 That the Kings Letters may not issue to Ordinaries for the discharge of persons Excommunicate save only in such Cases as wherein the Kings Liberty is prejudiced by such Excommunication 8 That Clerks in the Kings Service if they offend shall be correct by their Ordinaries but Clerks during such time as they are in his Service shall not be oblig'd to Residence at their Benefices 9 That Distresses shall not be taken in the Ancient
Fees wherewith Churches have been endowed otherwise in possessions of the Church newly purchased by Ecclesiastical persons 10 That such as Abjure the Realm shall be in peace so long as they be in the Church or in the Kings High-way 11 That Religious Houses shall not by compulsion be charged with Pensions resort or Purveyors 12 That a Clerk Excommunicate may be taken by the Kings Writ out of the Parish where he dwells 13 That the examination of the Ability of a Parson presented unto a Benefice of the the Church shall belong unto a Spiritual Judge 14 That the Elections to the Dignities of the Church shall be free without fear of any Temporal power 15 That a Clerk flying into the Church for Felony shall not be compelled to abjure the Realm 16 And lastly That the Priviledge of the Church being demanded in due form by the Ordinary shall not be denied unto the Appealor as to a Clerk confessing Felony before a Temporal Judge 2. In conformity to the premisses there were other Statutes after made in the time of King Ed. 3. whereby it was Enacted 1 That the goods of Spiritual persons should not without their own consents be taken by Purveyors for the King 2 That the King shall not collate or present to any vacant Church Prebend Chappel or other Benefice in anothers Right but within Three years next after the Avoidance 3 That the Temporalties of Archbishops Bishops c. shall not be seized into the Kings hands without a just cause and according to Law 4 That no waste shall be committed on the Temporalties of Bishops during Vacancies and that the Dean and Chapter may if they please take them to Farm 5 And lastly That the Lord Chancellor or Lord Treasurer may during such vacancies demise the Temporalties of Bishopricks to the Dean and Chapter for the Kings use 3. And as there are Articuli Cleri so there are also Articuli Religionis being in all thirty nine Agreed upon at a Convocation of the Church of England Ann. 1562. Ratified by Q. Elizabeth under the Great Seal of England Confirmed and Established by an Act of Parliament with his Majesties Royal Declaration prefixed thereunto Which Act of Parliament requires a Subscription by the Clergy to the said thirty nine Articles the same also being required by the Canons made by the Clergy of England at a Convocation held in London Ann. 1603. and ratified by King James The said Subscription referrs to three Articles 1. That the Kings Majestie under God is the only Supream Governour of the Realm and of all other his Highness Dominions and Countreys c. 2. That the Book of Common Prayer and of Ordaining of Bishops Preists and Deacons containeth nothing in it contrary to the Word of God c. 3. That he alloweth of the said thirty nine Articles of Religion and acknowledgeth them to be agreeable to the Word of God By the Statute of 13. Eliz. 12. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be prosecuted and proceeded against by the Censures of the Church And it is not sufficient that one subscribe to the Thirty Nine Articles of Religion with this Addition so far forth as the same are agreeable to the Word of God For it hath been resolved by Wray Cheif Justice and by all the Judges of England That such subscription is not according to the Statute of 13. Eliz. because the Subscription which the Statute requires must be absolute But this is no other then Conditional 4. The Circumspecte agatis is the Title of a Statute made in the 13 th year of Ed. 1. Ann. D. 1285. prescribing certain Cases to the Judges wherein the Kings Prohibition doth not lie As in Case the Church-yard be left unclosed or the Church it self uncovered the Ordinary may take Cognizance thereof and by that Statute no Prohibition lies in the Case Nor in case a Parson demands his Oblations or the due and accustomed Tythes of his Parishioners nor if one Parson sue another for Tythes great or small so as the fourth part of the Benefice be not demanded nor in case a Parson demand Mortuaries in places where they have been used and accustomed to be paid nor if the Prelate of a Church or a Patron demand of a Parson a Pension due to him nor in the Case of laying violent hands on a Clerk nor in Cases of Defamation where Money is not demanded nor in Case of Perjury In all which Cases the Ecclesiastical Judge hath Cognizance by the said Statute notwithstanding the Kings Prohibition So that the end of that Statute is to acquaint us with certain Cases wherein a Prohibition doth not lie And the Statute of 24 Ed. 1. shews in what Case a Consultation is to be granted And by the Statute of 50. Ed. 3. cap. 4. no Prohibition shall be allowed after a Consultation duely granted provided that the matter of the Libel be not enlarged or otherwise changed CHAP. XLIV Of several Writs at the Common Law pertinent to this Subject 1. What the Writ of Darrein Presentment imports in what case it lies and how it differs from a Quare Impedit 2. Assise de utrum what and why so called 3. Quare Impedit what for and against whom it lies 4. What a Ne admittas imports the use and end thereof 5. In what case the Writ Vi Laica removenda lies 6. What the Writ Indicavit imports and the use thereof 7. What the Writ Advocatione Decimarum signifies 8. Admittendo Clerico what and in what Case issuable 9. The Writ Beneficio primo Ecclesiastico habendo what 10. That Writ Cautione Admittenda and the effect thereof 11. The writ of Clerico infra Sacros ordines constituto non eligendo in Officium What the use or end thereof 12. The Writ Clerico capto per Statutum Mercatorum what 13. What the Writ of Clerico convicto commisso Goalae in defectu Ordinarii deliberando was 14. What the Writ of Annua Pensione was anciently 15. The Writ of Vicario deliberando occasione cujusdam Recognitionis what 16. Three Writs relating to Persons excommunicated 17. Assise of Darrein Presentment brought after a Quare Impedit in the same cause abates 18. Difference of Pleas by an Incumbent in respect of his being in by the Presentment of a stranger and in respect of his being in by the Presentment of the Plaintiff himself 19. Notwithstanding a recovery upon a Quare Impedit the Incumbent continues Incumbent de facto until Presentation by the Recoverer 20. Of what thing a Q. Imp. lies and who shall have it 21. Who may have a Quare Impedit and of what things 22. How and for whom the Writ of Right of Advowson lies 23. What the Writ de jure patronatus and how the Law proceeds thereon 24. The Writ of Spoliation what and where it lies 25. The Writ
Chancery the Sheriff came to the house but could not apprehend the parties B. finding the house empty entered peaceably S. made an Affidavit in B. R. that he was ousted by the Sheriff by force and B. put in possession the Court of B. R. thereupon granted a Writ of Restitution he having an Appeal depending of the Deprivation In this Case these points were resolved 1 That the Writ De vi Laica removenda is not returnable unless the Sheriff find the Force 2 That the Kings Bench cannot award Restitution upon an Affidavit but there ought to be a Return of the Writ of Vi Laica c. in the Chancery and upon Affidavit made there that the Sheriff by virtue of the Writ hath removed one and put another in possession Restitution is awardable 3 Resolved that upon a Deprivation by the High Commissioners no Appeal lieth because the Commission is grounded upon the Prerogative of the King in the Ecclesiastical Goverment and therefore the Commissioners being immediate from the King and possessing his person no Appeal lieth 4 Resolved That 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 In the principal Case it was adjudged that until the Deprivation was repealed it stood good and so B. had good Title to the Church A Lease was made of a Rectory a Parson was presented to it and upon a supposition that he was held out by Force had a Vi Laica removenda upon which the Sheriff returned Non inveni vim Laicam nec potentiam armatam notwithstanding which Return upon Affidavit that he was kept out with Force a Writ of Restitution was awarded out of the Kings Bench. Yet in Zakars Case Coke Chief Justice said we are to judge upon a Record and not upon Affidavits in which Case he being deprived for Simony Richardson Serjeant moved the Court to have him restored again because as he urged it he was unlawfully removed The reason being that in a Vi Laica removenda whereby he was removed which Writ by F. N. B. and the Register comes to remove omnem vim Laicam he shews that the Sheriff did dispossess him and put another in the which he ought not to do and as Coke Chief Justice then said that in so doing he had done against the Law if he removes one and puts another in and Richardson Serjeant there cited Robinsons Case Hill 38. Eliz. where upon an Affidavit made that the Sheriff in a Vi Laica removenda had removed one and put another in there this was debated whether upon this shewed to the Court the first man removed should be restored again or not and there resolved by the whole Court the second man to be displaced again and the first to be restored and Coke said if a Justice of Peace remove a Force he cannot put another into possession 26. There is a Writ in the Register Quod Clerici non Eligantur in officium Ballivi c. For all Ecclesiastical persons in office are allowed certain priviledges by the Common Law in respect of their Function they are exempt from all personal charges which might any way hinder them in their calling as to be Chosen to the Office of Bayliff Beadle Reeve or the like in respect of their Lands to which end the said Writ is provided which doth recite that by the Common Law they ought not to be chosen to such offices aforesaid and commands that in case any Distress be taken or Amercement levied on any of them on that account that it shall be restored So the Stat. of Marleb cap. 10. That persons of Holy Church and persons Religious shall not be commpell'd to come to the Sheriffs Tourne or Leet and so also it is by the Common Law In Favour also of Holy Church the Law did anciently allow them Two other priviledges viz. Clergy and Abjuration In the Ninth year of the Reign of King James a question was moved whether after the Conviction of an Heretick before the Ordinary the Writ de Haeretico comburendo did at that day lie or not as to the Resolution of which question the Judges were then divided in opinion as appears in the Fortieth Chapter precedent § 7. what was then controverted is now decided by an Act of Parliament made in the 29 th year of his Majesties Reign wherehy it is enacted that the Writ commonly called Breve de Haeretico comburendo with all process and proceedings thereupon in order to the executing such Writ or following or depending thereupon and all punishment by death shall be from thenceforth utterly taken away and abolished 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS The Kings Supremacy Vld. Heyl. Cypr. Angl. p. 1. In his Cases of Conscience lib. 3. ch 3. fol. 544. Lib. 3. cap. 4. fol. 600. nu 4. Archbishops and Bishops a Spelm. in Archaeologo b Bed Eccl. Hist lib. cap. 1. 27. c D. Usserius in primord pag. 97. d Ammian Marc. lib. 14. e Philip. Berterius Pithanon Diatrib 1. c. 3. fin f Onuphr in Imperio Romana g Spartian in Severo vid. Burt. Com. in Anton. pag. 83 c. h Hist Angl. Script Antiq. Radulph Abbre Chron. Col. 435 436. i Beda l. 2. c. 3. k Bed lib. 2. cap. 9. It is Reported That Fridona a Saxon was the first English Archbishop and of the See of Canterbury in the Seventh Century about the year 656. Fuller Church-Hist Cent. 7. p. 84. nu 85. l Anonym qui de Archiepisc Ebor. scripsit An. 1460. m Harris descrip Britan. l. 1. c. 7. n Euseb Eccl Hist l. 10. c. 5. Pag. 9. See the Admir'd Selden ad Eutichii Origines pa. 122. Burt. Com on Antonin fo 81. o Herod Hist lib. 3. p C. de Reivindicat q Seld. Anaect Angl. Brit. ib. 1. cap. 7. r Ossilegium or the gleaning up of his Bones s Dio. Cassius Hist Rom. l. 76. Guardians of the Spiritualties Congé d'Eslire Election c. Radulph de Diceco Abbre Chronic. de Reg. Steph. R. Idem de Reg. R. 1. Chron. Gervas de Temp. R. 1. Hist Counc Trent lib. 8. Dict. Lib. 8. Deans and Chapters Archdeacons Procurations Diocesan Chancellors Courts Ecclesiastical Churches and Chappels pag. 169. a Claris Seld. illust in Polyol magni Poetae Angl. Cant. 8. b Guil. Stephanides Descript Lond. c Spartian Hist d Rad. de Diceto Abbr. Chron. e Hist Ri. Prioris Hagulstad de Gest R. Steph. f L. 5. Inae R. g Chron. Gâ—rvas de Temp. H. 2. h Chron. Jo. Brampton de LI. Edm. Reg. i Idem de Legib. Kâ—nuti Reg. Churchwardens Consolidation Dilapidations 1 Chro. 24. Suarez de Virt. Stâ—tu Religionis lib. 1. c. 28. nu 18. Patrons and Patronage Parsons and Parsonage Vicars Vicarages and Benefices Advowsons Appropriations Vid. G. Thorne in his chronicle De Reb. gestis Abbatum S. Augustin Cant. Commendams Lapse Collation and
a. Owen 3 5 Roll. 2. 368. b. 27 E. 3. 84. b. Co. 7. 28. Dr. Stud. lib. 2. cap 31. Pars Counsel par 1. cap. 2. f Dr. Stu. ubi supr g Co. 6 19. b. Cro. El. 119. Dyer 328. a. h 18 Eliz. Dyer 346. Trin. 41 El. B. R. Baker and Brent's Case Cro. par 3. acc 679. i 13 E. 4. 3. Bâ—ook Plenarty 15 43 E. 3. 11. 11 H. 4. 80. k Mich. 10 Jac. rot 2642. Câ—lt and Glover vers the Bishop of Coventry and Lichfield Hob. Rep. p 6 E. 1. Rot. Pat. membr 25. q Co. 6. Cates by 62. r dict 6 E. i. s 5 E. 1. 75. Adjudg Q. Eleanoâ—s case Contra Co. 6. Câ—â—sby 62. b. t 14 H. 7. â—â— Curia 18 H. 7. Kell 50. b. Quaerâ— u D. 15 16. El. 227. 7. per Curiam x 1 H. 7. 9. b. D. 15 16 El. 327. 7. Dr. Stu. 16. 5 E. 4. 3. b. y 38 E. 3. 2. z 18 H. 7. Kell 50. b. Contr. per Frowick a 18 H. 7. Kell 49. b. b Ibid. c Trin. 33 Eliz. B. R. Palmer and the Bishop of Peterburghs Case Cro. par 1. Mich. 27 28 Eliz. C. B. Bâ—verly and Cornwall's Case e Hill 6 Jac. B. R. Cro. par 2. a St 25 Ed. 3. 6. b 14 H. 7. 22. by Kingsmill c 1 Car. B. R. Dickenson and Greenâ—â—â— Case Popâ— 1â—8 d 27 E. 3. 64. e 25 Ed. 3. 6. 1 Ed. 4. f Reg. of Writs fo 31. b. g Pasch 33 Eliz. C. B. The Queen and the Bishop of York ' s Case Leon. Rep. h Mich. 10 Jac. rot 2642. Colt and Glov vers Bish of Cov. and Lichf Hob. Rep. i Hill 17 Jac. rot 1840. Case Gawdy vers Archb. of Canâ— al. Hob. Rep. k Mich. 15 Jac. Brickhead vers Archb. of Yâ—â—k Hob. Rep. l The Form whereof vid. Reg Orig. fo 3â— 2. a. m Terms of Law verb. Presentment n Mich. 31 32 Eliz. C. B. Cripps the Archb. of Canterbury's Case Owen 47. o 11 Jac. C. B. The King and the Bishop of Linc. Case Also Mich. 8 Jac. C. B. Case betwixt the King and the Bishop of Chichester then vouched and affirmed for Law p Stephen Gardener's Case there vouched by Cook Chief Justice Vid. Mich. 3 Car. B. R. Stephens and Potter 's Case Cro. 1. par 70 71. acc Vid Trin. 8 Jac. C. B. rot 18 11. Cro. 2. par 247. the same Case q Tr. 8 Jac. B. R. Starkey and Pole's Case Bulstr 1. par 26 27. Hughes Abr. ver Advowson Sect. 6. §. 13. r Dr. Stu. cap 36. s Dr. Stu. ibid. t Dr. Stu. cap. 30. u Trin. 13 Eliz. C. B. Smalwood vers Bishop of Lichfield Leon. Rep. x Stat. 13 Ed. 1. cap. 5. y Case Evans and Ascough Latch Rep. Z Stoke vers Styles Latch Rep. fo 253. a Case ibid. See this Case in Noy's Rep. b Stokes vers Sykes Latch Rep. c Kitchin vers Calvert Lanes Rep. d Terms of Law verb. Nomination e 21 H. 6. 17. by Fulthorp f 14 Ed. 4. 2. Smith and Clayton's Case g Fitz. N. B. 33. b. h Dict. Cas Lane Rep. i Trin. 7 Jac. in the Exchequer Calv. against Kitchin and Parkinson Lane's Rep. k Servien agaiest the Bishop of Lincoln Noy's Rep. l In Robbino Case Noy's Rep. m Smith agaiest â—â—avis Noy's Rep. n Hill 1 Jac. B. R. rot 601. Fairchild and Gaier o Co. Lit. 601. p Da. 1. 46. b. Roll. Abr. verb. Present lit B. q Trin. 41 Eliz. B. R. Windsor and the Archb. of Cinterb Case Cro. par 1. r 17 E. 3. 40. Adjudg'd s 21 E. 3. 6. b. t 14 H. 3. Quare I. ped 183. Adjudg u Co. Litt. 344. x Co. Litt. ibid. y 50 E. 3. 26. 9 H. 6. 16. b. admit 24 E. 3. 26. b. Curia z 17 E. 3. 40. Adjudg a Rol. Abr. ver Preseâ—um D. m. 2. b 12 E. 3. Quare Imp. 56. per Schard c Liber Parliamentorum 21 E 1. the Prior of Bermuâ—dsey's case adjudg'd in Parl. 24 E. 3. 30. adjudg'd Rol. ubi supr lit E. nu 5. d 11 â— 4. 9. lyâ—all the Justices â— N. B. 34. K. 36. K. 38 E. 3 4. Hob. Rep. 208. e 43 E. 3. 3. f 17 E. 3. 40. b. g Ibid. h 19 E. 2. Qua. Imp. 178. i Rol. Abr. ver Presentm lit L. 4. k Rol. ibid. l Ibid. Hob. 209. m 38 E. 3. 36 b. Rol. Abr. ubi supr lit O. n Vid. Rol. ibid. lit Q. o Ibid. nu 3. p P. 32 El. B. R. Rot. 2065. inter Executors of Smalwood and the Bish of Coventry and Lichfield q Co. 6. Green 29. b. Boswell 50. Co. Lit. 344. r Co. Lit. 120. s 2 E. 1. Rot. Patentium membran 5. t 19 E. 3. Quare Imp. 60. Agree Co. Lit. 120. u Co. 6. Green 29. b. Dubitatur D. 16 El. 327. 6. Co. 6. Green 29. b. adjudg x Dom. Rex vers Emerso Triâ— 8 Jac. rot 1811 Brownâ— Rep. par 1. Act on Qu Imp. y Hill 22 23 Car. 2. C. B. Rot. 680. Shute vers Higden Vaugh. Rep. and Arguments a The King and Bish of Lincoln and King Case More 's Rep. Mich. 5 Eliz. More 's Rep. Pasch 30 Eli. More 's Rep. b M. H. 8 Jac. in Scac. inter Calvert Kitchin peâ—r Cur. c Ibid. D. 12 El. 292. 70. 16 El. 327. 4. d Dubitatur D. 18 El. 348. 12. Co 9. Holt. 132. Said to be Resolved in the said Case of 18 El. D. 20 El. 360. 7. admit e 15 H. 7. 7. b. f Co. 5. Speâ—ot 58. Rol. ibid. g D. 14 El. 3. 4. 54. Rol. ib. lit Y. h 2. D. 14 El. 304. 54. Rol. ibid. i Cronwel vers Lister Brownl Rep. pa. 1. Actions on Qua. Imp. k Mich. 15 Car. B. R. between Phipps and Hayter per Cur. Hutton's Case Hob. Rep. l Hill 40 El. B. R. Leak and the Bishop of Coventry's Case Cro. par 1. Albany and the Bishop of St. Asaph's Case Cro. par 1. Mich. 3. Jac. B. R. Lancaster and Low's Case Cro. par 2. Cro. par 1. Pasch 26 El. B. R. the Bish of Hereford's Case Cro. par 1. a Canon 35. Ecclesiastical b Co. 5. par Specot's Case c Rol. Abr. ver Preseâ—tm lit X. d Co. 2. Specot 58. e 14 H 7. 28. b. Cariae f Pasch 33 Eliz. C. B. 〈◊〉 and the Bishop of Peterborough's Case Leon. 230. g Mich. 15 Jac. C. B. Adjudg'd vid. acc 5 H. 7. 7. Câ— 5. par Specâ—t's Case h â—â—oton against the Bishop of Rochester Hutt Rep. i Rud. vers the Bishop of Lincoln Hutt Rep. k Co. on Lit. fo 334. a. l 3 R. 2. 7 H. 4. 1 H. 5. Rot. Bar. 6 H. 4. nu 48. 4 H. 6. nu 29. m Co 4. par Instit cap. 74. §. Consistory Courts m St. 13 El. cap. 12. n Canon Ecclesiastical 33. o Hill 8 Car B. R.
Hill Brownl Rep. pa. 1. Actions of Debt Brownl Rep. ibid. Action for stopping the Parsons Way of carrying his Tithes Mich. 8 Jac. B. R. Bulstr par 1. a Hob. 308 309. b Idem 300. Cro. 454 482. c Mich. 17 Eliz. B. R. Hughs Abr. verb. Dismâ—s d Co. lib. 11. Regist 49. Reynold's C. Mores Rep. e Hil. 7 〈◊〉 E. of Shrewsburiâ—'s Case Bulstr p. 1 â— f Pasch 41 El. B R. per Cur. Hill 10 Jac. B. Parson of Stanfield in Suffolk per Cur. Prohibit granted g Pasch 16 Jac. B. Nicholls Hooper per Cu. 3 Jac. B. R. Spencer Johnson Pasch 17 Jac. B. Kenniston h 2 H. 4. Rot. Parl. nu 93. i Cro. pa. 1. k More Case 1212. l P. 7 Jac. C. B. adjudg Mich. 6 Jac. C. B. Smith's Case Bulstr 2. 238. Cro. 2. 42. 116. Green's Case m Cro. 2. 42. Hall vers Phettiplace n 17 Jac. B. R. Cro. Car. 237. 559. Jones 254. o F. N. B. 53. p Adjudg Mich. 38 El. C. B. Grisman vers Lewes Cro. pa. 3. 446. q Mich. 8 Jac. C. B. inter Baxter Hopes r Roll. 1. 646. a. 6 7. r Rol. 1. 647. 〈…〉 s Hil. 43 El. C. B. Sharinglon and Fleet-wood's Case Goldsb 157. t Hil. 7 Car. B. R. Lacie vers Long. Jones Rep. u Co. 11. 19. 2. 43. w Yelvert 94 95. x Pasch 21 Jac. B. R. Snell and Bennet's Case Godbolt 333. y Mich. 8 Jac. 1610. C. B. Brownâ— Rep. par 2. z Cro. par 1. a Crop pâ— 2. b Co. Inst par 2. 652. b. c 2 Car. B. R. Poph. Rep. 197. d Parker vers Kempe Bulstr par 2. Co. Inst pa. 2. 643 Co. 11. par 49. a. Dr. Stu. 173. e More Case 1278. f M. 11 Jac. C. B. Sâ—arington's Case 2 El. Dyer 170. 2 Ed. 6. c. 13. Co. 2. Inst 656. Plow 204. â— 396. b. vid. 15 Car. B. R. in Sugden and Câ—ttel's Case g Pasch 14 Jac. B. R. Witt and Buck's Case Bulstr 165 166. par â— h Hil. 6 Car. B. R. Strowd vers Hoskins Jones Rep. Sherington and Fleetwood's Case Cro. par 1. Bulstr par 3. i More Rep. Holliday Lees Case k More Cas 716 716. Jac. C. B. Pinder's Case l Adjudg Pasch 6 Jac. C. B. in â—indâ—r and Spencers Case m Sir S. Dâ—ggs Law of Tithes c. 4. n Pasch 5 Jac. C. B. Mauâ— Somerton's Case Brownl 1. par 84. o More Cas 1271 1272. q More r Mich. 19 Eliz. B. R. Pasch 34 El. C. B. s More 1279. t Pasch 40 Eliz. Austin Lucas Adjudg per Cur. u Mich. 14 Jac B. R. Lee and Collin's Case Tr. 15 Jac. B. Belle Tarde Prohibition granted M. 14 Ja. B. R. Dr. Beste Williams Prohibition granted Hill 14 Jac. B. R. Kneebon Woodret Consultation denied M. 3 Jac. B. R. per Towse said That it was one Samms Case of Essex Adjudg'd Tr. 38 El. B. R. inter Sherington Fleetwood per Curiam M. 7 Car. B. R. Facy Large per Cur. Tr. 15 Jac. B. R. Lâ—mkin Wilde Mich. 8 Car. B. R. Baxter Hopes Cas Brownl 2. pa. acc Trin. 20 Jac. Winch. 33. acc a M. 17 Jac. B. R. Mich. 2 Jac. B. R. Webb's Case Mich. 8 Car. by 3 Justices B. Istr 2. 238. March 56. b Broo. Dismes 16. Lane 16. Golds b. 147. Plow 66. c Term. 7 Jac. B. R. Broo. Dismes 17 d Pasch 15 Car. Adjudg acc Hugh Abr. e More Case 1279. f Pasch 17 Jac. B. R. g Hill 16 Jac. B. R. inter Daudrige and Johnson h Ibid. i 20 Eliz. B. R. by Wray and all the other Judges k Co. 4. 44. a. 2 Inst 655. Dr Stud. l. 2. c. 55. Hob. 176. l Hugh's Parsons Law cap. 27. m 8 H. 6. 22 23. 9 H. 6. 17. 6 E. 3. 27. 17 E. 3. 11. 12 H. 4. 13. 19 H. 6. 75. 34 H. 6. 36. 31 H. 6. 28. 35 H. 6. 5. 26 H 8. 7. 27 H. 8. 20. 21 acc n Pasch 17 Car. in Hitchcock's Case o Pasch 17 Car. B. R. Hichcock Hichcock's Case Marsh 87. p Mich. 6 Jac. C. B Case Mildmay Hutton Pasch 15 Car. Adjudg acc Ibid. r 38 Eliz. C. B. s Smith's Case C. B. t 12 Ed. 4. Dr. Stu. 169. u Hil. 6 Car. B. R. Halsey vers Halsey Jones Rep. w Broo. Dismes 6. Brownl 2. pa. 30. x Co. on Litt. 159. Hill 6 Jac. Brownl Rep. pa. 1. Cases in Law c. Ford vers Pomroy Brownl pa. 2. Hill 6 Jac. â— pl. 13. per Cur. Trin. 21 Jac. B. R. Guin Merryweather's Case Roll. Rep. Stebs and Goodwich's Case Mores Rep. y Hob. 107. z More Case 1280. a Hob. 106. b March 65. c Co. Select Cases 14 46 48. f Co. 2. Inst 653. g Co. 1. pa. 33. 2 Ed. 6. 13. 32 H. 7. Co. 44 Brownl 2. pa. 33. h Yelvert 86. i Lane 17. Hob. 269 296 309. k Hob 176. l Co. 13. 16. m Co 2. B. of Winchester's Case n Co. ibid. o Wright and Wright's Cas Cro. par 1. p Mordant and Cummin's Case Cro. par 3. q Mich. 11 Car. B. R. Sydown and Holme's Case Cro. par 3. Parkins and Hind's Case Cro. par 1. Mich. 28 Eliz in Cur. Wardor More Green and Buskyn's Cas Mores Rep. Quarles and Sparting's C. Mores Rep. Mich. 6 Jac. C. B. Case of Modus Decim Co. lib. 13. Mich. 14 Jac. B R. Wintell against Childe Bulstr par 3. Mich. 9 Jac. C. B. Brownl Rep. par 1. Cases in Law c. Brownl ibid. Discharge of Tithes Coke 2. The Bish of Winchester's Case 38 Eliz. fo 43. Parkins and Hind's Case Cro. par 1. Cornwallis Spurling's C. Cro. par 2. n More Cas 1270. o 15 Car. Adjudg p Pasch 15 Car. Adjudg acc a Pasch 7 Jac. C. B. b 15 Car. by Barkley Justice in C. B. c 12 H. 8. 4 d More Case 322. e Case Sharp versus Sharp Noy Rep. f 12 H. 8. 4. by all the Justices g Bulstr 8. 165. h More Case 603. i Tr. 8 Car. B. R. Earl of Desmond's Case adjudg Cro. 1. pa. 192. 15 Car. B. R. Adjudg Hugh Abr. verb. Dismes k Cro. Car. 264. 1. 339. Koll 1. 635. c. 4 6 7. l Law of Tithes cap. 8. m Hil. 9 Car. B. R. Cro. par 1. 247. Appeal out of Ireland to the Delegates in England Trin. 8 Car. B. R. Cro. p. 2. n Mich. 3 Car. C. B. Morant and Canding's Case Cro. p. 1. 67. o 14 H. 4. 17. p Owen 35. q Brownl 69. r Blinco vers Marston Cro. par 1. 469. s dict Cas Blinco Mores Rep. t Cro. Eliz 161. u Roll. 655. k. 1. w Cro. Eliz 578. x Crompt Cas Pasch 7 Car. 1. B. R. y Trin. 31 El. B. R. Style Miller Leon. 300. z Hugh Abr. vert Dismes Sec. 2. 5. Harris vers Cotton Brownl
Ed. 6. Vid. Co. 2. par Inst 650. b. Hil. 40 El. C. B. Rot. 699. Bedell's Case acc g 12 Ed. 4. 24. Mich. 29 El. B. R. Adjudg acc 35 H. 6. 39. acc h Hugh Parsons Law c. 27. p. 292. i More 1267. k Marsh 87. l Hob. 247. m Co. Select Cases 40. 46. n Tr. 12 Jac. B. R. Case Reynolds Hayes Rol. Rep. vid. 38 Ed. 3. 13. by Finehden Co. 11. par Dr. Grant's Case o More Case 192. p Mic. 6 Jâ—c C. B. Smith's Case Adjudg q Mic. 29 El. Wood's Case adjudg Co. 2 par Inst 650. r 43 El. C. B. Sr. Moyle Finche's Case vid Hil. 40 El. B. R. Rot. 699. Bedell's Case acc s Co. 2. par Inst 651. a. t Hil. 2 Jac. B. R. Sr. Rich. Chaepernon Hill's Case Cro. 2. pa. 68. u Tr. 15 Jac. B. R. Horne Cotton's Case Hob. 387. w Hill 22 Jac. B. R. Rob 212. Mountford Stdley's Case Boâ—str 3. par 336 337. vid. Trin. 21 Jac. B. R. Wiseman Denham's Case Gods 329. x P. 17 Car. C. B. Adj. acc Hugh Abr. Dismes Sect. 4. §. 7. y Tr. 26 El. B. R. Witâ—â— Paunder's C. Adjudg acc z M. 2 Car. B. R. Bellamy 〈◊〉 Case â—ot 175. Goab 373. a Mich. 8 Ja. C. B. in Câ—fes Case b M. 7 Jac. C. B. in â—awling's Case c M. 4 Car. B. R. in Hawes Brayfield's Case Cro. 2. par 137. vid. Nelson Prettiman's C. Rolls Roll's Case B. R. Adjudg acc ibid. d P. 19 Jac. B. R. Bothe Crompton's C. Cro. 2. pa 613. e 19 Eliz. B. R. f Dr. Stâ— 166. 19 Eâ— Dyer in B. R. Adjudg vid. Hugh Abr. Dismes Sect 1. §. 11 12. g Hensloe's Case Co. 2. par h Tr. 31 El. B. R. Stâ—le Miller's Case Leon. 300. i 32 Eliz. in Dabbiâ—gtons Case Mich. 13 Car. B R. Chase Ware per Cur. Intratur Tr. 13 Car. rot 564. Trin. 21 Jac. B. R. Bennet vers Snell Rol. Rep. par 2. Sâ—vil Woods Case Cro. par 1. Sherburne's Case Cro. par 1. Leigh Woods Case Cro. par 1. Ingolibâ—y and Johnson's C. Cro. par 1. Cro. ibid. Blackwell's Case Cro. par 1. More 's Rep. More 's Rep. Ibid. Case 1219. Trin. 44 El. B. R. Spratt against Heal. Co. lib. 13. Whereupon a Libel for Tith a Prohibition and where a Consultation shall be granted A Consultation granted a Hob. 44. 297. b Co. 2. par Inst 655. More 46 47. Cro. Jac. 608. c Sr. Sim. Deg. Law of Tithes ch 21. Hugh Abr. Dism Sect. 3. § 17. d Co. 11. par 13. Bridle Nappeâ—s Case e Mich. 30 H. 8. Dyer 43. f Mich. 11 Jac. C. B. Sharington's Cas g Hil. 15 Jac. C B. Adjudg Hide Ellis Case h 22 Ed. 4. 24. i 29 Eliz. B. R. by Sâ—uit and Clâ—rk Justices Mich. 12 â—ac B. R. 〈◊〉 vers 〈◊〉 Bulstr par 2. 2 H. 4. Rot. Par. nu 99. a Hob. 219. b Hob. Rep. Case 288. c P. 14 Jac. C. B. rot 1918. Gâ—ffly Vindar's Case Hob. 219. d Hutt Rep. 77. f Pasch 42 Eliz. g Rol. 1. 643. v. 2. Bulstr 27. h Adjudg Trin. 19 Jac. B. R. i Adjudg Hill 16 Jac. C. B Leonards Case 4 El. B. R. Foster Leonards C. Adjudg'd accordingly Cro. 2. par 199. acc k By Hobart Ch. Justice l M 4 Jac. B. R. m M. 15 Jac. C. B. White Bickerstaffs Case n Tr. 4 Car. C. B. Norton Farmer Case o dict Bickerstâ—ffs Case p 2 Ed. 6. 13. vid Rol. 1. 656. l. 1. q Hill 15 Jac. C. B. Hide Ellis Case Adjudged r Tr. 4 Car. C. B. Cro. 1. par 80. Norton Fermor's Case s Hob. 288. 219. Rol. 640. q. 6 7 8. Noy 30. Cro. Jac. 199. t Co. 2. Inst 652. Cro. El. 499 609. Cro. Car. 113. More 683. Rol. 1. 644. z. 1 2 3. u Rol. 1. 645. z. 8 9 10. w Rol. 1. 637. e. 7. x Tr. 19 Jac. B. R. Buckhuâ—st vers Newman Trin. 36 El. B. R. per Henden Pars Law y Co. 11 par 48 49 81. Plowd 470. Brownl 1. pa. 94. 2. par 150. Doct. Stud. 69. Pasch 5 Jac. Man vers Somerton Brownl Rep. pa. 1. Actienâ— of Deb. Tr. 14 Jac. B. Parson Ellis and Drakâ— Tâ— 38. El. B. R. Pars Ran Pâ—tteson Tr. 10 Car. B. R. Brown Nixon per Cur. Mich. 17 Jac. B. R. Rol. Rep. par 2. Somerton and Cotton's Case Cro. par 1. Norton and Fermor's Case Cro. par 3. a Fitz. N. B. Consultation 51. g. b More Case 1283. c More ibid. d P. 14 Eliz. Harpur's Rep. e Cro. El. 363. T. f Rol. 1. c. 45. z. â—4 15 16. Bulstr l. 3. 242. Fess Parker's Case g Rol. 1. 646. z. 18. h Tr. 3. Car. B. R. Ashton Wilters Case i 15 Car. B. R. adjudged vid. M. 2. Car. B R. Poph. 197. Hugh Abr. Dismes Sect. 5. §. 21. k Mich. 2 Car. B R. Hob. 197. Trin. 8 Jac. Rot. 134. Pain vers Nichol. Brownl Rep. par 1. â—ctions of Debt Pasch 16 Jac. 〈◊〉 inter Niâ—â—cls Hooper per Cur. Tr. 12 Jac. B. R. between Marskall and Price Dubit Mich. 14 Jac. B. R. between Joyse and Parker per Cur. Case ibid. P. 14 Car. B. R. inter Dent Salvin per Cur. Ibid. Jâ—sâ—p Paynes Case Cro. par 1. i Can. 101 102 103 104. k Synt. jur l. 9. c. 5. n. 10. Pasc 8. Car. B. R. Matinley vers Martyn Jones Rep. Adulterium est illicitus Concubitus conjugati conjugatae b St. 1. H. 7. c Lev. 20. 10. Deut. 22. 22. d Joh. 8. 5. In epist Bonifac ad Ethelbald Ang. Reg. Antiq. Brit. f. 60. n. 20. Seldeni ad Eadmerum Notae Specilegium p 185. l. 37. e Vin. l. 3. c. 86. f Scot. Hist g Purch Pilg. p. 3. l. 2. c. 2. § 5. h Lerius c. 17. i Mex Hist k Purc Pil. p. 3. l. 5. c. 6. l Lins c. 16. o AElianus s 28. Eliz. by Wray Anderson man-wood Crom. 140. t 13. H. 7. 10. Br. Travers 432. v Bl. Nomo Lex Verb. Lairwite w Vid. Fleta l. 1. c. 47. to this purpose Co. Inst par 4. fo 206. x St. West 3 c. 34. Co. 2. p. Inst fo 433. y Camd. Brit. tit Sussex Co. Inst 2. p. fo 475. Lessius de Just jur lib. 4. cap 3. Dob 10. nu 71. a Cossanae de Consuet Burgund p. 1116. b Terms of Law verb. Bastard St. 20. H. 3. 9. Mulier according to Vlpianus is a defiled Woman c Ibid. verb. Mulier Lit. Tenures lib. 3. cap. 6. Of Descents d St. 9. H. 6. c. 11. and Smith de Rep. Angl. lib. 3. cap. 6. e Glanv l. 7. c. 1. and Britt c. 7. skene de verb. fig. verb. Mulierarus filius Vid. Co. on Litt. fol. 170. b. and 243. b. f Bract lib. 5.
Cas Coo. lib. 4. 16. 3â— Eliz. i 25. Eliz. Palmer and Thorp's Case Co. 4. par 20. k Hill 32. Eliz. Rot. 434. B. R. Pierce vers Howe Leon. Rep. l 40. Eliz. B. R. â—ollard and his wife against Armshaw Gold 172. m Mich. 9. Car. B. R. Dorothy Brian vers Cockman Cro. Rep. n Trin. 9. Car. Person and his Wife against Gâ—oday Cro. Rep. o Pasch 4. Car. C. B. Eaton vers Ayloff and his Wife Cro. Rep. p Mich. 7. Car. B. R. Hollingsheads Case Cro. Rep. q Mich. 8. Car. B. R. Cucko vers Starre Cro. Rep. r Hill 9. Car. B. R. Gobbets Case Cro. Rep. par 3. s Mich. 10. Car. rot 148. Dymmock vers Faweett Cro. Rep. t Pasch 12. Car. C. R. Pew and his Wife ver Jefferyes Cro. Rep. u Trin. 19. Jac. C. B. Winch. Rep. x Case Parrett vers Carpenter Noy Rep. y Thorne against Alice Duâ—ham Noy Rep. z Case Lewes against Whitton Noy Rep. a Eaten and Morris's Case Hetley's Rep. b Sir Christoph Hodâ—man vers John Grisell Noy ' s Rep. c Hill 4. Jac. B. R. inter Turnain and Thorne per Cur. Mich. 38 39. Eliz. B. R. Butler and Bartlett Adjudgd d Rep. 14. Jac. B. Adjudg vid. Rol. Abr. pag. 295. nu 2. e Mich. 7. Jac. B. inter Simpson and Waterâ— per. Cur. f Hill 7. Jac. B. per Coke g Hill 7. Jac. per Cuâ—iam Adjudg h 27 H. 8. 14. b. per Fitzherbert i Mich. 2. Car. inter Lewes and Whitley per Dederidge and Jones contra Whiâ—lâ—ok k Hill 9. Car. B. R. inter Isles and Cobbet per Curiam h Mich. 14. Jac. B R. Motam vers Motam Rol. 〈◊〉 Coke 4. Palmer and Thorps Case 25. El. f. 20. Vid. The Present State of Eng. p. 29. vid. the Charter of Donation in Ingulphus and other Authors pag. 224 225. Simonia est vox Ecclesiastica à Simone illo Mago deducta qui donum Spiritus Sancti pecuniis emi pura vit Injustum est illa vendere quae gratis distribui debent c Stat. 31. Eliz. c. 6. d Stat. ibid. e ibid. f 2 Kin. 5. 20. c. h Dict. St. 31 Eliz. Universas promissiones pactiones Simoniacas penitus revocamus eas in posterum fieri districtius in hibemus Constit Othoâ—on cap. quia pâ—erumque i Co. 3. Inst 154. k Câ— 12. 74. l Pasck 17. Jac. B. R. Case Fowles vers Lapthorne vid. the Pars Counsellor par 1. cap. 5. m Mich. 42. and 43. Eliz. B. R. Case Baker and Roger Cro. El. 788. n Case of the King and the Bishop of Norwich Cole and Sâ—cker Cro. Jac. 385. Bulstr 3. 92. o Co. 3. Inst 154. cap. 71. p Co. 12. 101. So was the Opinion of all the Judges of Serjeants Inn in Fleetstreet Mich. 8 Jac. Parsons Cons ubi supra q Hill 16. Jac. rot 667. c. B. per Graunt and Bowdens Case r Case Smith vers Shelburne More 916. Cro. Eliz. 685. s ibid. infra eod Noy Rep. t Case Sheldon vers Brett Winch. 63. u Hob. 165. vid. Parson's Counsellor par 1. c. 5. w 8 Jac. Case Jones and Lawrence Cro. 248. 274. Pars Couns ibid. x Co. 3 Inst 153. Noy 72. a Hill 5. Car. B. R. Case Babinglon vers Caleb Wood. Jones Rep. b Pasch 10. Car. B. R. Todderidge vers Mackalley Jone's Rep. c per Hob Case Winchcomb vers Pulleston Noy Rep. d Mich. 13. Jac. B. R. Case of the K. vers Bishop of Norwich Rolls Rep. e 27 H. 8. 26. f Trin. 15 Jac. C. B. Rot. 1052. Sir Jâ— Paschal vers Clark Noy Repâ— g Case Winchcombe vers Vullestoâ— Noy Rep. h ibid. i Adjudg 42. and 43. Eliz. 〈◊〉 〈◊〉 Case Noy Rep. k Noy ibid. l 7 Jac. Calvert vers Parkinson in Cam. Scaccar Noy Rep. m Mic. 13 Jac. B. R. Case of the K. vers Bishop of Norwich Roll. n Adjudg in Bakers Case vers Mâ—undford Noy's Rep. o E. of Suffex Case vâ—â—ch'd by Forster Justice in dict Bakers Case Noy Rep. p 10 Eliz. Doctor Hutchinsons Case cited by Warburton and Hutton Noy Rep. q Dict. Cas Winchcombe vers Pulleston r ibid. s Noy Winchcombs Case t dict Case of the King vers the Bishop of Nâ—rwich Roll. Rep. u Cro. Car. 425. w Hob. 167. x Pasch 17. Jac. Case of Sir Jo. Bowse vers Wright 167 168 177. y Hob. ibid z Hill 41. Eliz. C. B. Smiths Case Owens Rep. a Trin. 7. Jac. in the Exchequer Câ—lvert against Kitchin and Parkinson and Kitchin against Calvert Lanes Rep. b Glosse and Pompoyes Case vouched by Damport in Calverts Case against Kitchin Lanes Rep. Trin. 4. Car. C. B. c The King against the Arch-bishop of Canterbury Hetley's Rep. d Hall and Blundells case Hatley's Rep. e Fowlers Case ibid. f Trin. 15. Jac. C. B. rot 2051. Sr. John Paschall vers Clark Noy's Rep. g Winch-combe against Pulleston Noy's Rep. vid. dict Cas h Gregory vers Olden Noy 's Rep. Masters of Chancery why so called i Luther vers Holland Noy 's Rep. k Parson Letters Case against Sussex Nay 's Rep. l Co. Lit. 120. m Winch-combs Case Hob. rep 227. n vid. Bishops Sparrow Collection of Artic. c. pag. 9. The Oath of Simony Penns Case Brownl Rep. par 2. o Hill 11. Jac. B. R. Sr. VVil. Bovers Case resolved p Pasch 17. Jac. B. R. Lapthornes Case Bath vers Potter Rol. Rep. par 2. q Hill 21. Jac. Rot. 1058. VVilson vers Bradshaw Rol. Rep. r Mich 42. 43. Eliz. B. R. Baker and Rogers Case Cro. par 1. More Case 1223. Mich. 13. Jac B. R. Cro. par 2. Close's Case More 's Rep. Hill 11. Jac. B. R. Bulsr par 2. Pasch 13. Jac. B. R. Bulstr par 3. Pasch 17. Jac. B. R. Booth and Porters Case Cro. par 1. Risby and Wentworth's Case Cro. par 1. Trin 41. Eliz B. R. Smith and Shelbourne Cro. par 1. vid. More Case 1229. Mich. 11. Car. B. R. Bryte and Mannings Case Cro. par 3. Bulstr ubi supra Co. Inst pa. 3. cap. 71. Aug. tract 40. in Johan Num. 22. 2 King 5. a L. L. Eccl. Kenethi l. 7. Spelm. Concil An. 840. 1 Cor. 5. 5. 1 Tim. 1. 2. b Hieron Epist 24. q. 3. haeresis Lollards from Lolium Darnel or Tares c Co. p. 3. Inst c. 5. d By Fleming Chief Justice Tanfield Chief Baron Williams and Coke Justices Hill 9. Jac. e Mat. Hammond 21 Eliz. Holl 1579. Stow. 1161. Co. ubi supra f 23 H. 8. 9. Co. ubi sup g 2 Mar. tit Haeresie Br. 7. Co. ubi supr h Co. ubi supr and 2 Mar. ubi supr F. N. B. 269. Hill 9. Jac. Co. lib. 12. i Coke lib. 12. Case of Heresie An. 491. A. D. 353. An. 174. An. 357. An. 601. An. 1202. An. 198. An. 214. An. 932. An. 1556. An. 373. An. 183. An 324. An. 609. An. 186. An. 135. An. 170. An. 141. An. 252. An.