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
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
gains not the Patronage from the Crown 3. The Ordinary's Collation by Lapse is only in the Patron 's right 4. What Presentation is and how in ease of Co-heirs or Joynt-tenants or Tenants in Common 5. Whether the Grantee of the next Presentation not Presenting at the First Avoidance shall lose the benefit of his Grant 6. The Right of Presentation is not an Ecclesiastical but Temporal Inheritance and cognizable at the Common Law 7. The power of the Ordinary in case of Coparconers Joyntenants or Tenants in Common as to Presentation 8. In what Case the Bishop hath Election whose Clerk he will Admit 9. Whether a Presentation is revokable before Institution 10. Whether the Son may succeed his Father in the Church and who may vary from or repeal his Presentation 11. What Nomination is and the Qualifications thereof 12. In what Case the Presentation is the Nomination or both as one in Law 13. In what case the Nominator shall have a Quare Impedit as well as he that hath Right of Presentation And there may be a Corrupt Nomination as well as a Corrupt Presentation 14. Whether the Collatee be Incumbent if the Bishop Collate him within the Six months And in what Case the Kings Presentation within the Six months may be an Vsurpation or not 15. Where the Ordinary Collates the Patron is to take notice of it at his peril 16. Who shall Present in case the Ordinary to whom a Lapse is devolved be within the Six months translated to another Bishoprick 17. A Resignation to a Proctor without the Bishops Acceptance makes not the Church void 18. A Parochial Church may be Donative exempt from the Ordinary's Jurisdiction and is Resignable to and Visitable by the Patron not the Ordinary 19. Where Two are to Present by Turns what Presentation shall serve for a Turn or not 20. By the Canons the Son may not succeed the Father in the same Church 21. To what a Presentation may be made 22. The Kings right of Presentation as Supream Patron 23. In what case the Kings Prerogative to Present doth not take place 24. In what Cases it doth 25. To whom the Patronage of an Archbishoprick belongs 26. Whether Alien Ministers are Presentable to a Church in England 27. In what Cases the Patron may Present de novo 28. Difference between the King and a Common person in point of Presentation 29. A Collation makes no Plenarty where it is tortious 30. Presentation may be per parol as well as by Writing 31. What amounts to a Revocation of the King's Presentation 32. Causes of Refusal of the Clerk Presented 33. Certain Law Cases pertinent to this Subject 34. Whether Institution granted after a Caveat entered be void 35. What shall be held a Serving of a Turn and good Plenarty and Incumbency against a Patron in Severalty 36. A Clerk refused by reason of his not being able to speak the Welsh Language 37. What is the best Legal Policy upon every Presentation by Vsurpation 38. One of Two Grantees of an Advowson to whom the other hath released may Present alone and have a Qua. Imp. in his own Name 39. A Clerk refused for Insufficiency by the Bishop may not afterwards be Accepted 1. COllation in its proper signification is the bestowing of a Benefice by a Bishop that hath it in his own proper right gift or patronage distinguish'd from Institution only in this That Institution into a Benefice is at the instance motion or Presentation of the Patron or some other having pro tempore the Patrons Right performed by the Bishop Extra de Instit de Concess Praeben c. But Collation is not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof or when the Bishop or Ordinary hath right to Present for Lapse of the Patron and yet sometimes Collation is and hath been used for Presentation And so Presentation Nomination and Collation are commonly taken for one and the same thing in substance though at times distinguished And whereas it hath been a Question If one hath the Nomination and another the Presentation which of them shall be said to be the very Patron it hath alwaies been taken to be the better opinion that he who hath the Nomination is Patron of the Church And where an Abbot had the Presentation and another the Nomination and the Abbey surrendred to the King he that hath the Nomination shall now have all for the King shall not Present for him that being a thing undecent for the King But as to Collation and Presentation they were in substance one and the same thing as aforesaid But to speak properly Collation is where the Bishop himself doth freely give a Benefice which is of his own Gift by right of Patronage or Lapse This word Collation seems also to be frequently used when the King Presents and hence it is that there is a Writ called Collatione facta uni post mortem alterius c. directed to the Justices of the Common Pleas Commanding them to direct their Writ to a Bishop for the Admitting one Clerk in the place of another Presented by the King which Clerk during the Suit between the King and the Bishops Clerk is departed this life For Judgment once given for the Kings Clerk and he dying before his Admission the King may bestow his Presentation on another This Collation Presentation and Nomination are in effect Synonima being distinguished only in respect rather of Persons than of Things 2. Yet there may be a great difference betwixt Presentation and Collation which gains not the Patronage from the King as appears in the Case of the Queen against the Bishop of York where the Queen brought a Quare Impedit against the said Bishop and one Monk and counted upon a Presentment made by King Hen. 8. in the right of his Dutchy of Lancaster and so conveyed the same to the Queen by Descent The Bishop pleaded That he and his Predecessors have Collated to the said Church c. and Monk pleaded the same Plea upon which there was a Demurrer And it was moved by Beaumont Serjeant That the Plea is not good for a Collation cannot gain any Patronage and cannot be an Usurpation against a Common person much less against the Queen to whom no Lapses shall be ascribâ—d and although the Queen is seized of this Advowson in the right of her Dutchy yet when the Church becomes void the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist 31. Quando Rex praesentat non in jure Coronae tunc incurrit ei Tempus Hamm. Serj. By these Collations the Queen shall be put out of possession and put to her Writ of Right of Advowson but the same ought to be intended not where the Bishop Collates as Ordinary but where he Collates
form following and not otherwise yet the King is not thereby restrained but his power remains full and perfect as before and he may still grant them as King for that all Acts of Grace and Justice flow from him By the Eighth Canon Concilii Calchuthensis held under Pope Adrian the First An. 787. the Pope had power to grant what Immunities and Priviledges he pleased in Church-matters and they were by the said Canon to be duly observed Whatever Authority the Pope pretended to in this Kingdom in such matters by way of Usurpation the same may the King as Supream Governour of the Church next under God in his own Dominions use and lawfully exercise by his Regal Authority ex justa plenitudine Potestatis suae Likewise Pope Agathon An. 680. in Concilio Romano-Britannico exercised his Papal Authority in the time of Lotharius King of Kent not only touching the Reformation of Errors and Heresies then in this Church but also as to the composure of differences and dissentions that then were among the Clergy of this Realm Such Presidents of the usurped power of the Papal See exercised in this Kingdom are now of no further use than to illustrate or exemplifie the Legal power inherent in the Kings of this Realm in such matters of Ecclesiastical Jurisdiction for the most High and Sacred Order of Kings being of Divine Right it follows that all persons of what estate soever and all Causes of what quality soever whether Ecclesiastical or Civil within his Majesties Realms and Dominions are subordinated to the Power and Authority of the King as Supream It is not only acknowledged but also constituted by way of an Ecclesiastical Canon That the power of Calling and Dissolving Councils both National and Provincial is the true Right of all Christian Kings within their own Realms and Territories 8. The Ecclesiastical Legislative power was ever in the Kings of this Realm within their own Dominions That in Ancient times they made their own Ecclesiastical Laws Canons and Constitutions appears by several Presidents and Records of very great Antiquity which were received and observed within their own Territories without any Ratification from any Forreign power One instance among many may be given of the Ecclesiastical Laws of Alured Mag. Regis Anglorum An. 887. This they did de jure by virtue of their own inherent Supremacy And therefore when Pope Nicholas the Second An. 1066. in the Bull wherein he ordained Westminster to be the place for the Consecration of Kings gave power to Edward the Confessor and his Successors to constitute such Laws in the Church as he should think fit he gave him therein no more than was his own before For the Kings of England might ordain or repeal what Canons they thought fit within their own Dominions in right of their Regal Supremacy the same being inherent in them Jure Divino non Papali For we find that in King AEtheldreds days An. 1009. in Concilio AEnhamensi Generali the Canons then made and afterwards caused by King Kanutus to be Transcribed were called the Kings Canons not the Bishops En hujus Concilii Canones quos in suas Leges passim transcripsit Rex Canutus Malmsburius AEtheldredo Regi non Episcopis tribuit And the Peers of this Realm per Synodum Landavensem were unexcommunicable nisi prius Consulto Rege aut ejus praecepto Which is a plain demonstration That the Kings of England Anciently had the Supremacy and superintendent Ecclesiastical power and Jurisdiction inherent in themselves exclusively to all other either home or Forreign powers whatever 9. It is by good Authority asserted That the King as Supream is himself instead of the whole Law yea that he is the Law it self and the only chief Interpreter thereof as in whose Breast resides the whole knowledge of the same And that his Majesty by communicating his Authority to his Judge to expound the Laws doth not thereby abdicate the same from himself but that he may assume it again unto him when and as oft as he pleases Dr. Ridl View p. 2. c. 1. Sect. 7. Consonant whereunto is that which Borellus hath Principum Placita Legis habent vigorem eatenus vim Legis obtinebunt quatenus fuerint cum honestate conjuncta Borel de Magist Edict l. 2. c. 4. Roland à Val. Cons 91. nu 54. vo 2. And Suarez tells us That Princeps est Lex viva reipsa praecipit ut Lex per scripturam Of which Opinion also is Alexander Imola and many others Suar. Alleg. 9. nu 13. The grant of Dispensations is a peculiar and very considerable part of Ecclesiastical Jurisdiction the which is eminently in the Crown and by the Stat. of 25 H. 8. the Archbishop of Canterbury may grant Dispensations Archiepiscopus possit dispensare contra Statutum Provinciale per se editum Et qui potest jus condere potest illud tollere Lindw de Cler. Conju c. 2. gl ult Extr. de Elect. c. Significasti c. Intonuit And in another place Episcopus in quibusdam Casibus Dispensare potest contra Canones Const Otho de Concu Cler. gl ver Meritis 10. The Laws and Statutes of this Realm have been tender of the Kings Supremacy ever since the Forreign power over the State Ecclesiastical was abolished In the Statute of 13 Car. 2. cap. 12. there is a Proviso That nothing in the said Act shall extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical matters and affairs And in the Stat. of 22 Car. 2. cap. 1. there is a Proviso That not any thing therein contained shall extend to invalidate or avoid his Majesties Supremacy in Ecclesiastical affairs but that his Majesty his Heirs and Successors may from time to time and at all times hereafter exercise and enjoy all Powers and Authority in Ecclesiastical affairs as fully and amply as any of his Predecessors have or might have done 11. As no Convocations for Ecclesiastical Constitutions or for correction or reformation of Abuses in the Church can be Conven'd without his Majesties Writ for that end and purpose so being Conven'd no Canons or Constitutions that shall then be agreed on can have any effect in Law or be in force to oblige any of his Majesties Subjects until his consent thereunto be first had and obtained and until they shall have the power of Ecclesiastical Laws by being ratified and confirmed by the Supream Authority Therefore the Archbishop of Canterbury may not hold a Council for his Province without the Kings leave for when such Council was held by Hubert Archbishop of Canterbury it was prohibited by Fitz-Peter Chief Justice for that he had not the Kings License therein but he would not obey And 13 E. 3. Rot. Parl. M. 1. there was a Writ for a Convocation of the Clergy of the Province of Canterbury and Pauls And another for the other of York vid. Stat. 25 H. 8. c. 19. where the Clergy of England acknowledge that
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
Catholick Faith or any of the Articles thereof grounded on the word of God 5. By a Proviso in the Act of 1 Eliz. c. 1. no matter or cause shall be adjudged Heresie but such only as hath been so adjudged by the Authority of the Canonical Scriptures and by the first four General Councils or by any other General Council wherein the same was declared Heresie by the express and plain words of the Canonical Scripture or such as shall hereafter be determined to be Heresie by Parliament with the assent of the Clergy in their Convocation as appears by the said Statute the occasion of the making whereof was as suppos'd by reason of an Indictment against certain persons called Lollards upon the Statute of 2 H. 4. c. 15. Whose Opinions were 1. That it was not meritorious to go in Pilgrimage to St. Thomas nor to St. Mary of Walsingham Nor 2 To adore the Image of a Crucifix or of Saints Nor 3 To confess sins to a Priest but to God onley c. 6. Sir Ed. Coke in the third part of his Institutes cap. 5. doth assert that both by the Books at Common Law and by History it doth appear that an Heretick may be convicted before the Archbishop and other Bishops and other the Clergy at a General Synod or Convocation Bract. Lib. 3. fo 123 124. in Concil Oxon. Newburgh l. 2. c. 13. 6 H. 3. Stow. Hol. 203. 2 H. 4. Rot. Parl. nu 29. Sautries Case F. N. B. 269. 2. 1 El. c. 1. And the Bishop of every Diocess may convict any for Heresie and so might have done before the Statute of 2 H. 4. c. 15. For the Diocesan hath Jurisdiction of Heresie and so it was practised in all Q. Elizabeths Reign and accordingly it was resolved by all the Justices in the the Case of Legate the Heretick And that upon a conviction before the Ordinary of Heresie the Writ de Haeretico comburendo did lye Without the aid of the Act of 2 H. 4. c. 15. it seems the Diocesan could Imprison no person accused of Heresie but was to proceed against him by the censures of the Church And now says the Lord Coke in the forecited place In as much as not only the said Act of 2 H. 4. but also that of the 25 H. 8. c. 14. are repealed the Diocesan cannot Imprison any person accused of Heresie but must proceed against him as he might have done before these Statutes by the censures of the Church as it appears by the said Act of 2 H. 4. c. 15. according to Sir Ed. Coke in that place aforesaid where he also saith that no person at this day can be indicted or impeached of Heresie before any Temporal Judge or other that hath Temporal Jurisdiction But every Archbishop of this Realm may cite any person dwelling in any Bishops Diocess within his Province for causes of Hersie if the Bishop or other immediate Ordinary thereunto consent or if that the same Bishop or other immediate Ordinary or Judge do not his duty in punishing the same 7. Again Sir Ed. Coke in the forementioned place affirms that it appears by Bracton Britton Fleta Stanford and all the Books of the Common Law that he who is duly convicted of Heresie shall be burnt to death Mir. c. 4. de Majesty Bract. ubi sup Britt c. 9. Fleta l. 1. c. 35. Reg. F. N. B. 269. But the Ecclesiastical Judge cannot as he says at this day commit the person that is convict of Heresie to the Sheriff albeit he be present to be burnt but must have the Kings Writ De Haeretieo Comburendo according to the Common Law F. N. B. 269. Rot. Par. 2 H. 4. nu 29. Sautries Case Bre. de haeret Combur per Reg. Concil in Parliam The reason Sir Ed. Coke gives wherefore Heresie is so extremely and fearfully punish'd is for that Gravius est aeternam quam Temporalem Laedere Majestatem And Haeresis est lepra animae The party duly convicted of Heresie may recall and abjure his Opinion and thereby save his life but a relapse is fatal And if the Heretick will not says he after conviction abjure he may by force of the said Writ be burnt without abjuration 2 H. 4 Rot. Parl. N. 24. A Writ was issued by the advice of the Lords Temporal in Parliament to the Sheriffs of London and subscribed per ipsum regem concilium in Parliamento by which the Sheriffs were commanded to burn William Sautre who had been before condemned for a relapsed Heretick by the Archbishop of Canterbury Apostolicae sedis Legatum and other Suffragans and all the Clergy of that Province in Concilio suo Provinciali Congregat juris ordine Note 1 Eliz. cap. 1. Proviso that such as have Jurisdiction by Letters Patents shall not have power to Judge Heresie but in such Cases as have been before adjudged c. or such as shall hereafter be ordered judged and determined to be Heresie by the High Court of Parliament of this Realm with the assent of the Clergy in their Convocation as aforesaid Before a man shall be adjudged an Heretick he ought to be convicted by the Provincial Synod for the Common Law doth not take notice what is heresie If an Heretick convict shall after abjuration relapse into the same or any other Heresie and thereof be convict again the Writ De Hoeretico Comburendo may be directed to the Sheriff after the party is delivered by the Clergy unto the secular power And by the Statute of 2 H. 4. c. 15. Every Bishop in his own Diocess might as aforesaid convict a man of Heresie and upon another conviction after abjuration might by the Sheriff proceed unto comburation But that Statute is repealed by the Statute of 25 H. 8. c. 14. vid. co lib. 12. in a Case of Heresie Note 2 Ma. tit Heresie Brook per omnes Justiciarios Baker Hare The Archbishop in his Province in the Convocation may and doth use to convict Heresie by the Common Law and then to put them convicted into Lay-hands and then by the Writ De Haeretico Comburendo they were burnt but because it was troublesome to call a Convocation It was ordained by the Statute 2 H. 4. cap. 15. That every Bishop in his Diocess might convict Hereticks And if the Sheriff was present he might deliver such to be burnt without the Writ aforesaid but if the Sheriff were absent or he were to be burnt in another County then the said Writ ought to be had who are Hereticks vid. 11. H. 7. Book of Entries fo 319. vid. Doctor and Stu. lib. 2. cap. 29. Cosin 48. 2. 1 2. P. M cap. 6. Also 3 F. N. B. fo 269. And the Writ in the Register proves this directly 4 Bracton l. 3. cap. 9. fo 123 124. And it is also true that every Ordinary may convent any Heretick or Schismatick before him pro salute animae and may degrade him
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
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