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
if not of the highest Antiquity Some will have it in Ancient times to have been the Temple of Diana but the Ingenious Commentator on Antoninus's Itinerary though he will admit that Diana was indeed worshipped here in the Roman times and had Temples here also yet he will not agree it other than a Tradition to assert That St. Pauls Church was formerly a Temple of Diana and is free to conjecture that Mr. Selden did but sport his Wit and was not in good earnest when he imagined that London might be called first Lhan Dien that is the Temple of Diana The same may be said concerning the Temple of Apollo on the Ruines of which the report is St. Peters in Westminster was founded The Antiquary will also have it That at York was Bellona's Temple and Minerva's Temple at Bath and that from her the Town was called Caer Palladour that is the City of Palladian waters They that will have the Church of Rome to be Caput Ecclesiarum do ascribe it to Pope Boniface that he obtain'd it of the Emperour Focas because the Church of Constantinople writ her self Primam omnium Ecclesiarum This was so Decreed in the year 608. by a Council of 62 Bishops sub Anathemata At a Synod held at Westminster under Pope Innocent 2. in the Third year of King Stephen An. D. 1138. it was Decreed That no Church should be built without Leave first obtained from the Bishop of the Diocess Apostolica authoritate prohibemus ne quis absque Licentia Episcopi sui Ecclesiam vel Oratorium constituat By the Fifth Law of Ina King of the West Saxons the Church is made a Sanctuary Si quis sit mortis Reus ad Ecclesiam fugiat vitam habeat emendet sicut rectum consulet At a Synod held at Westminster in the Reign of H. 2. An. 1175. it was ordained then no Judgments touching Blood or Corporal punishment should be given in a Church or Churchyard by the Sixth Canon made at that Synod Seculares Causas in quibus de sanguinis effusione vel de poena Corporali agitur in Ecclesiis vel in Coemiteriis agitari sub interminatione anathematis prohibemus By the Fifth Canon made at a Synod held in London during the Reign of Edmond Father of Edwin and Edgar who succeeded Aethelstan at which Synod were present Odo and Wulstan Archbishops provision was for the Repairing of Churches viz. Vt omnis Episcopus reficiat Dei domos in suo proprio Regem ammoneat ut omnes Ecclesiae Dei sint bene paratae The like you have in the 92 Law of King Kanute Ad refectionem Ecclesiae debet omnis populus secundum Legem subvenire At a General Council held at Rhemes under Pope Calixtus An. 1119. during the Reign of H. 1. it was Ordained That whoever invaded the possessions of the Church should be Anathematiz'd Vniversas Ecclesiarum possessiones quae Liberalitate Regum vel Largitione Principum concessae sunt inconcussas in perpetuum inviolatas esse decernimus Quod si quis eas abstulerit aut invaserit Anathemate perpetuo feriatur And by the Sixth Law of Ina aforesaid if any man fought in the Church he should forfeit Six pounds si quis in Ecclesia pugnet 120 solid emendet And although it be now looked upon as Exaction for a Parson to demand his Funeral dues of Burial where the deceased is carried out of his Parish to be buried in another so it was long since Ordained by the Laws of King Kanute leg 16. Si Corpus aliquod à sua Parochia deferatur in aliam pecunia tamen Sepulturae ejus jure in eam Ecclesiam pertinebit Among other Officers relating to the Church those of Churchwardens Questmen and Sidemen are not to be omitted for although they may be some of the Lower Form yet they are of necessary use and such as without whose care many disorders in the Church may pass unpunished as well as the Concerns thereof much prejudiced for which end and reason the Law will have them to be a Corporation qualifies them to Sue subjects them to Suits and understands them in the nature of Ecclesiastical Trustees as Guardians of the Moveable Possessions of the Church Therefore the Canons have determined as to the qualification of the persons Eligible the manner of their Choice by whom and the time when their Oath Office Duration and Account when and before whom it shall be made and how they shall be finally discharged By reason of the great desolation and ruine of many Churches and Parishes in the late Unnatural War in this Kingdom and otherwise it hath been judged necessary to pass an Act of Parliament for the Uniting of certain Churches in Cities and Towns Corporate Notwithstanding which the Parishes to remain distinct as to all Rates Taxes Parochial Rights Charges and Duties and all other Priviledges Liberties and Respects whatsoever wherein it is also Enacted That the Patrons of such Churches and Chappels so united shall Present by Turns only to that Church which shall remain and be Presentative from time to time c. Provided That Parishes having 100 l. maintenance per An. may not be Vnited Also the Incumbents of such united Parishes must be Graduates in some Vniversity And the Owners of Impropriations may bestow and annex Maintenance to the Churches where they lie and settle it in Trust for the benefit of the said Parsonage or Vicarage without any License of Mortmain It is there also further Enacted That if the settled Maintenance of such Parsonage Vicarage Churches and Chappels so united c. shall not amount to the full sum of 100 l. per An. clear and above all charges and reprizes that then it shall be lawful for the Parson Vicar and Incumbent of the same and his Successors to take receive and purchase to him and his Successors Lands Tenements Rents Tithes and other Hereditaments without any License of Mortmain any Law or Statute to the contrary notwithstanding The Churches and Parishes in London which by that Act since the Dreadful Fire are United are these viz. The Parishes of Alhallowes Breadstreet and St. John Evangelist are united into one Parish and the Church of the former to be the Parish-Church of the Parishes so united The Parishes of St. Albans Woodstreet and St. Olaves Silverstreet are united into one Parish and the Church of the former to be the Parish Church of the said Parishes so united The Parishes of St. Austins and St. Faiths are united into one Parish and the Church of the former to be the Parish Church of the said Parishes so united The like order to be observed in all the rest of the Parish Churches that are by that Act united Touching Dilapidations of Ecclesiastical Edifices and Possessions it may well be presumed That the most of that kind that ever was in the Christian World was in the time of Dioclesian's
5. was the Question Coke Chief Justice This Modus cannot go to this new Mill for an ancient Mill your Modus shall be allowed but not for the Mill newly erected the Custome will not extend to it and therefore by the Rule of the Court for this new Mill a Consultation was granted Mill-stones if one pair thereof be turned into two pair both of them shall pay Tithe and their Priviledge if they had any will be lost Pasch 17 Jac. Johnson's Case Fitzh N. B. I. G. Co. 244. Brownl 1. 31. So that if there be but one pair of Mill-stones in a Mill and a Rate-Tithe be paid for them if afterwards there be another pair of Mill-stones put on now Tithes must be paid in kind Brownl ibid. Milk paying Tithe exempts the payment of Tithe-Cheese made of the same Milk Et è contra Mines or Minerals of Iron Brass Tinn Lead Copper Coles and the like are not Tithable Register 51. F. N. B. 53. 9. Broo. Dismes 18. Mixt Tithes are of the profits of such things as arise partly from the labour and care of men and partly from the Earth whereof the things are and sometimes are called Predial Mediats and come not immediately of the Ground but of things maintained out of the Ground as Cattel Calves Lambs Kids Wool Milk Cheese Chicken Geese Ducks Swans Eggs c. Mixt Tithes are properly such as come of Milk Cheese c. Or ex foetibus animalium quae sunt in pascuis gregatim pascuntur ut in Agnis Vitulis Haedis Caprcolis Pullis c. Coke Magn. Chart. 649. Modus Decimandi is the payment of something in lieu of the just and full Tithe of a thing Tithable legitimated by Composition Custome or Prescription it is when Lands Tenements or Hereditaments have been given to the Parson and his Successors or an Annual certain Sum or other Profit alwaies time out of mind to the Parson and his Successors in full satisfaction of all Tithes in kind in such a place and all Presidents in Prohibitions in discharge of Tithes in case De modo Decimandi run thus viz. That such a Sum had been alwaies paid in plenam Contentationem Satisfactionem Exonerationem omnium singularum Decimarum And although the Sum be not paid yet cannot the Parson sue for Tithes in kind not for the Tithes in kind in the Ecclesiastical Court but for the money in the Temporal Trin 7 Jac. in the Case De modo Decimandi Prohibitions debated before the K. Coke Select Cas 40 46. In Biggs Case it was Resolved where a Prohibition is awarded upon a Suggestion of a Modus Decimandi and a Consultation awarded for not proving the Suggestion within Six months there a new Prohibition shall not be awarded upon an Appeal in the same Suit More 1234. This Modus Decimandi refers only to the Reality viz. the Tithes and not to the Personalty viz. the Offerings Nor can it begin at this day but is and must be by Prescription and is intended to have a lawful commencement upon some Agreement at first made for valuable Consideration with the Parson or Vicar And if the Modus Decimandi be to pay a Sum of money for the Tithe of a piece of Ground which is after turned to Houses and Gardens the Modus continue Yea it doth so actually discharge and extinguish Tithes that they are thereby turned into a Lay-Fee as well as the Nine parts Touching this Modus Decimandi there are some things that seem doubtful and unresolved in the Law as if the Modus be of Land given to the Parson in satisfaction of Tithes and the Land after happen to the evict Q. if the Tithes in kind do not in such case revive Or if Lands be once discharged of Tithes by a Modus Decimandi Q. whether the Tithes shall revive again upon failure of the Modus But if Land be granted to the Parson in satisfaction of Tithes if the Parson alien the same without the consent of the Patron and Ordinary his Successor shall have Juris Vtrum If a man Prescribe to pay a Modus Decimandi for the Tithe of certain Lands if the Land be afterwards lett to Farm and the Farmer pay the Tithe in kind yet it shall not destroy the Prescription as to the Lessor If a Lessee pay Tithes in kind yet that shall not destroy a Modus in the Lessor But if the Modus Decimandi be of a thing for which no Tithe is due de Communi jure it is not good nor can it stand to rise and fall according to the Rent by Prescription as of Houses in London That the Trial of Modus Decimandi as the Common Lawyers affirm belongs to the Temporal not the Spiritual Courts and for the grounds of Prohibitions in such case If the Ecclesiastical Court allow not of any such thing as a Modus Decimandi it is because the Canonists do hold Tithes to be due Jure Divino and consequently not extinguishable in the whole nor diminishable in part by any Custome or Prescription in opposition to the Law of God The Temporal Courts will admit them also to be Jure Divino but do allow if so only Secundum quid viz. quoad sustentationem Cleri but not quoad Decimam aut aliquam aliam certam partem and therefore do admit of a Modus as to the quantum where there is a sufficient maintenance for the Clergy besides which is not only allowed but also confirmed by Act of Parliament So that if the Lord of a Mannor grants parcel of his Mannor to a Parson in Fee to be quit and discharged of Tithes and makes an Indenture and the Parson with the assent of the Ordinary without the Patron grants to him that he shall be discharged of Tithes of his Mannor for that parcel of Land if afterwards the said Lord of a Mannor or his Assigns be sued in the Ecclesiastical Court for Tithes of his Mannor he or his Assigns shall have a Prohibition upon that Deed and therefore if the Lord of the Mannor hath alwaies holden his Mannor discharged of Tithes and the Parson had time out of mind Lands in the same Parish of the Gift of the Lord of which the Parson is seised at this day in Fee in respect of which the Parson nor any of his Predecessors ever had received any Tithes of this Mannor If the Parson now sueth for Tithes of this Mannor the Owner of the Mannor shall shew that Special matter that the Parson and his Successors time out of mind have holden those Lands of the Gift of one who was Lord and the same is good Evidence to prove the Surmize in the Prohibition And in another Case of a Modus Decimandi it was holden by the Court That if a Modus Decimandi be for Hay in Black-Acre and the party soweth the same with Corn seven years together the same doth not destroy the Modus
answers the Election of a Bishop 2. Admission to which Confirmation answers 3. Institution which is as the Consecration and Induction as the Restitution of the Temporalties The Spiritual Marriage between the Church and the Bishop initurper Electionem Contrabitur per Confirmationem Consummatur per Consecrationem and the Restitution of the Temporalties is as the bringing home of the Wise CHAP. VII Of Deans and Chapters 1. What a Dean is why so called what Dean and Chapter signifies and what Deans Rural arc 2. The Division of Deans according to the Civil and Canon Laws a Question in Law touching the Deanary of St. Martins 3. Two ways of Creating Deans and in what other senses the word or style of Dean is applicable 4. Four sorts of Deans according to the Law of the Land 5. The Patronage of Deanaries is in the Crown 6. The Dean and Chapter of a Cathedral is a Corporation Spiritual 7. A Deanary consists of two parts The difference between a Dean Prebend and Parson and that Deanaries and Archdeacomies are Ecclesiastical Dignities 8. Chapter what the several Acceptations of that word 9. The difference between Capitulum and Conventus in the Canon Law 10. The description of a Chapter as to their Constitution and Government 11. Whether one Bishop may have two Chapters 12. Whether the Lease of a Parsonage in one Diocess annexed to a Prebend in another made by that Prebend be good without the Confirmation of that Bishop in whose Diocess the Parsonage is 1. DEAN 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 decem is an Ecclesiastical Magistrate so called because anciently he presided or had power over Ten Canons or Prebends at the least Sed dicuntur Decani Rurales eo quod Decem Clericis five Parochiis praesint Secund. Papiam Lindw de Constit verb. Decan Rurales gloss Dean Rural because he usually had charge over Ten Country Parishes Anciently also called Archipresbyter because other Presbyters were under his charge Here in England he is commonly called a Dean who is next under the Bishop and Chief of the Chapter ordinarily in a Cathedral Church the rest of that Ecclesiastical Society or Corporation being called Capitulum the Chapter Dean and Chapter is a Body Corporate Spiritual consisting of many able persons in Law viz. the Dean who is Chief and his Prebends and they together make the Corporation And as this Corporation may joyntly purchase Lands and Tenements to the use of their Church and Successors so likewise every of them severally may purchase to the use of himself and his Heirs After the death of a Prebend the Dean and Chapter shall have the Profits And after the death of a Dean of a Free Chappel belonging to the King the King shall have the Profits of the Deanary for it is at the pleasure whether he will Collate a new Dean to it It is likewise held that a Deanary is a Spiritual Promotion and not a Temporal by all the Judges And if the Nomination and Patronage of a Deanary be at the appointment of the King his Heirs and Successors and he appoint a Dean yet it is a Spiritual Promotion The King makes the Corporations of Dean and Chapter The Chapter of the Bishop consists of a Dean as the Chief and of the Prebendaries or the like which are commonly called the Chapter As to the Bishop and Chapter which are but one Body their possessions are divided so as the Bishop hath a part for himself and the Chapter the residue And their Possessions also for the most part are divided the Dean having one part alone in right of his Deanary and each particular Prebendary a certain part in right of their Prebends the residue the Dean and Chapter have alike and each of them is to this purpose incorporate by himself In the Cathedral Churches of St. David and of Landaff there never hath been any Dean but the Bishop in either is Head of the Chapter and in the Bishops absence in the Chapter at St. Davids and at Landaff the Archdeacon There are also some Deans in England without any Jurisdiction only for Honour so styled as the Dean of the Chappel Royal and Dean of the Chappel of St. George at Windsor And some Deans there are without any Chapter yet enjoying certain Jurisdictions as the Dean of Croydon the Dean of Battel the Dean of Bockin c. In the Case of the Dean and Chapter of Norwich it is said That in Christian Policy it was thought necessary for that the Church could not be without Sects and Heresies that every Bishop should be assisted with a Council viz. a Dean and Chapter 1 To Consult with them in deciding of difficult Controversies of Religion to which purpose every Bishop habet Cathedram 2 To Consent to every Grant the Bishop shall make to bind his Successors for the Law did not judge it reasonable to repose such confidence in him alone At first all the Possessions were to the Bishop afterwards a certain portion was assigned to the Chapter therefore the Chapter was before they had any Possessions and of Common right the Bishop is Patron of all the Prebends because their Possessions were derived from him So that so long as the Bishoprick continues the Dean and Chapter being his Council remains This word Dean is diversly used by Lindwood who speaking of Dean-Rurals describes them to be certain persons that have certain Jurisdiction Ecclesiastical over other Ministers and Parishes near adjoyning assigned unto them by the Bishop and Archdeacon being placed and displaced by them Such are the Dean of Croydon in Surrey the Dean of Battel in Kent the Dean of Burian in Cornwal c. These Deans Rural are Decani Temporales Constituted to some Ministerial Function under the Bishop or Archbishop They are certain Ecclesiastical persons having certain Offices commonly belonging to the Bishop and Archdeacon and therefore to either of them belongs the receiving or removing of them and their Office is temporal not perpetual as is the Office of the Deans of Cathedral and Collegiate Churches and other Churches quibus perpetuo intitulantur 2. The Civil and Canon Laws do chiefly take notice but of three sorts of Deans the one he who is impower'd and set over Ten Souldiers Another he who is called Dean Rural as aforesaid The third is a Dean of a Cathedral or Collegiate Church as abovesaid There is also the Deanary of St. Martin le Grand Lond. concerning which Lindwood puts the question Whether it be such an Ecclesiastical Benefice as in effect may incur such penalties as may possibly happen to other persons Beneficed And after deep enquiries into the Laws Presidents and Antiquities Forreign and Domestick with very delectable variety of great Learning hinc inde argumentatively and pro con impartially at last doth conclude it in the Affirmative Lindwood Constit tit de Cohab. Cleric Mul. c. ut Clericalis
a day extraxit gladium against J. L. ipsum percussit and because the Statute was If any person maliciously strik another or shall draw any Weapon with an intent to strike any person And the Indictment was quod extraxit but does not say ad percutiendum And because it is quod percussit without saying malitiose the party was discharged upon Judgment If there be a Parson Appropriate of a Church and also a Vicar endowed of the same Church the Trees in the Church-yard do there belong to the Vicar and not to the Parson for that there the Vicar ought to repair the Church and he shall have the Trees which ought to repair the Church Dubitatur Mich. 13 Jac. B. R. Bellamie's Case The Lord Coke said That for the Body of the Church the Ordinary is to place and displace in the Chancel the Freehold is in the Parson and it is parcel of his Glebe Trespass will lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House 23. An Inhabitant of the Parish of D. hath Land in his occupation in the Parish of S. The Church-wardens of S. and other the Parishioners there make a Tax for the Reparation of the Church for Ornaments of the Church and for the Sexton's wages amounting to the sum of 23 l. and the Tax of the Church being deducted cometh but to 3 l. only The Foreigner which dwells in D. is sued in the Ecclesiastical Court by the Churchwardens of S. for his part of the said Tax and he prays a Prohibition Henden said he well agreed the Case of Jefferies 5 Coke that he should be charged if this Tax had been for the Reparation of the Church only for this is in nature Real But when that is joyned with other things which are in nature personal as Ornaments of the Church or Sexton's wages with which as it seems he is not chargeable then Prohibition lies for all Flemming Chief Justice and Williams Justice thought fit that he should not have a Prohibition for as well the Reparations of the Church as the Ornaments thereof are meerly Spiritual with which this Court hath nothing to do and Flemming said That such Tax is not any charge issuing out of the Land as a Rent but every person is taxed according to the value of the Land But Yelverton and Fenner to the contrary that a Prohibition doth lie for the same diversity which had been conceived at the Bar and also they said That he which dwels in another Parish doth not intend to have benefit by the Ornaments of the Church or for the Sexton's wages And for that it was agreed by all by the Chief Justice Williams and the others That if Tax be made for the Reparation of Seats of the Church that a Foreigner shall not be taxed for that because he hath no benefit by them in particular and the Court would advise In Penner and Crompton's Case it was held That none shall be chargeable for contribution to Church-reckonings if he do not inhabit there or consent to them More 's Rep. 24. Note upon a motion for a Prohibition That if a Parson contract with me by word for keeping back my own Tithes for three or four years This is a good Bargain by way of Retainer and if he sue me in the Ecclesiastical Court for my Tithes I shall have a Prohibition upon this composition But if he grant to me the Tithes of another though it be but for a year This is not good unless it be by Deed. 25. The disposal of Seats in the Body of the Church doth belong of common right to the Ordinary of the Diocess so as he may place and displace at his pleasure If a man and his Ancestors and all those whose Estate he hath in a certain Messuage have used time out of mind c. to repair an Isle of the Church and to sit there and none other the Ordinary may not displace him for if so then a Prohibition lies for that he hath it by prescription upon reasonable consideration Likewise if a man prescribe That he and his Ancestors and all those whose Estates he hath in a certain Messuage have used to sit in a certain Pew in the body of the Church time out of mind c. in consideration that he c. have used time out of mind to repair the said Seat If the Ordinary remove him from that Seat a Prohibition lies for in this case the Ordinary hath not any power to dispose thereof for that is a good prescription and by intendment there may be a good consideration for the commencement of that prescription although the place where the Seat is be the Parson 's Freehold In this case a Prohibition was granted to the Bishop of Exeter for one Cross But if a man prescribe to have a Seat in the Body of the Church generally without the said consideration of repairing the Seat the Ordinary may displace him But with the Seats in the Chappels annexed to Noblemens Houses it is said the Ordinary hath nothing to do If there be a custome in a Parish that 12 of the Parishioners may chuse the Churchwardens which Churchwardens have power by the custome to repair the old Seats and erect new in the Body of the Church and to appoint who shall sit in them And the Churchwardens so elect erect a New Seat in the Body of the Church and appoint a certain person to sit there and after the Ordinary decree That another shall have the Seat In this case it is said a Prohibition lies for the custome hath fixt the power of disposing the Seats in this case in the Churchwardens and a Prohibition was granted But it was also partly granted for that the Sentence of the Ordinary was That T. should have the Seat to him and his Heirs and that none should disturb him on pain of Excommunication which is unreasonable and by that Sentence he and his Heirs shall have it although they do not Inhabitants within the Parish 26. The Ecclesiastical Court hath cognizance of the Reparations of the Body of the Chuech If a man that dwells in one Parish hath Land in another the which he keeps in his own hands and occupation he shall be charged for that Land for the Reparation of the Church of that Parish where the Land lies for that he may come when he will and it is a charge in respect of the Land But if an Inhabitant in one Parish lease out his Land which he hath in another Parish reserving Rent he shall not be charged where the Land lies in respect of the Rent because there is a Parishioner and an Inhabitant that may be charged And a man cannot be charged in the Parish where he doth inhabit for Land which he hath in another Parish to the Reparation of the
surmized they had a Custome to place a Clerk there by the Election of the Vestry the Parson sued them in the Ecclesiastical Court to have his Clerk placed there according to a late Canon made It was the Opinion of the Court that it was a good Custome and that the Canon could not take it away wherefore a Prohibition was granted 16. A Bishop Archdeacon Parson are Spiritual Corporations at the Common Law for the Parson and this is meant also of the others hath two Capacities The one to take to him and his Heirs the other to him and his Successors and in that respect he is seized jure Ecclesiae If J. S. be Parson of D. and Land be granted to J. S. Parson and his Successors and to J. S. Clerk and his Heirs in this case he is Tenant in Common with himself 17. Note That it was agreed in Bushie's Case That if a Parsonage be Impropriate and the Vicarage be endowed and difference be between the Parson and the Vicar concerning the Endowment that shall be tried by the Ordinary for the Persons and the Cause are both Spiritual And there the Vicar sues the Parson for Tithes and suggests the manner of Tithing and prays a Prohibition and it was granted and after upon solemn Argument Consultation was granted insomuch that the manner of Tithing did not come in question but the Endowment of the Vicarage only for that is the elder Brother as the Lord Coke said This was cited to be Adjudged by Coke Also there is much difference between Prebends and Parsons for it was Adjudged in Watkinson and Man's Case That a Lease made by a Prebend is good by the Statute of 32 H. 8. for he is not excepted but only Parsons and Vicars and so it was said it had been Adjudged in Doctor Dale's Case 18. It will not be denied but that the Clergy of England have had in all Ages certain Priviledges which the Laity never pretended to To which purpose there have been Laws Enacted and Cases Ruled by persons learned in the Laws In An. 22 H. 8. cap. 5. it is Enacted That the decayed Bridges in every County where it cannot be known who in right ought to repair the same shall be repaired by the Inhabitants of the said County Town Corporate or Riding where the Bridge is by the Assessment of the Justices of Peace who may appoint Collectors to levy the same by Distress Now the Question is Whether the Parsons and the Vicars may be charged by the general word of the Inhabitants and Distress taken on their Spiritual Livings In order to a Resolution of this Question it must be premised That it is most evident that the Clergy are by the Common Law of this Kingdom a divided Estate both for their Persons and Spiritual promotions from the Laity of this Land 1 For their Persons Fitz. N. B. fo 175. That Clerks shall not be chosen Bayliffs or Beadles for the Lands in their possessions although the Land before it came to the hands of the Clerk was charged therewith by tenure 2 A Clerk arraigned before a Temporal Judge for Felony may plead the Jurisdiction of the Court The Clergy-men by reason of their Resiance are not bound to the Leet nor to follow Hugh and Cry 3 That their Spiritual Livings are also discharged from the general charge of this Realms Laity appears by the Register fo 260. F. N. B. fo 227. That Spiritual persons shall not be charged to pay Toll Pontage or Murage but may discharge themselves by Writ Also the Sheriff who by the Law is the King 's general Officer to serve Processes in every County may not intermeddle with the Clergy in respect of their Spiritual promotions but return Quod Clericus est Beneficiatus in Episcoparu non habet Laicum foedum in baliva mea and then the Process must be to the Bishop as appears 34 H. 6. 21 H. 6. This Priviledge is confirmed to them by Magna Charta and divers Grants and Statutes viz. Articulis Cleri 9 Ed. 2. cap. 9. Likewise no Distress shall be taken in the Ancient Donations of the Church The like Grant is made unto them by King Ed. 1. 24. Protestation 2. That the Sheriff or Minister of the King shall not meddle with the Goods Chattels or Carriages of the Clergy and in Purveyors 12. An. 14 Ed. 3. there is a Statute that Purveyors shall not meddle with the Clergy c. Ed. 1. cap. 1. 1 R. 2. cap. 2. 1 H. 4. cap. 3. Statute Spiritualties 2. Priviledges Grants Immunities of the Clergy are confirmed So that it appears both by the Common Law and the Statutes that the Clergy are not to be burthened in the general charges with the Laity of this Realm neither to be troubled or incumbred unless they be especially named and expresly charged by some Statute And divers Statutes heretofore expressing themselves with the like general words have never been expounded to extend to the Clergy as by the usage of them appears by the Statute of Winton An. 13 Eliz. 1. Again the people dwelling in a Hundred where any Robbery is committed shall either bring forth the Felon or agree with him that is robbed yet hath it never been taken that Parsons and Vicars should be Contributors thereunto yet the words Gentes demorantes viz. the People dwelling are as general words as Inhabitants In the same Statute there are the like general words Watching c. yet the Clergy thereby are never charged Also the Statute made for the High-ways An. 2 3. P. M. chargeth every Housholder yet this general Housholder hath never been taken by usage to charge the Clergy viz. the Parson or Vicar Fitz. in his Nat. Bre. fol. 131. saith that a Clerk being bound in a Statute-Merchant shall not be taken by his Body And the Writ founded upon the Statute-Staple 27 Ed. 3. cap. 9. hath this special Proviso Si Laicus Sit capias Also the Statute whereupon this Writ is founded is general and no Exception made at the Clergy And 33 H. 8. cap. 2. there is a Statute that chargeth all Resiants within any Countyâ— where there is no Goal to be Taxed by the Justices for the Building of one yet have the Clergy never been charged by reason of these general words Resiants c. 1 Ed. 1. 18 Ed. 3. 4. 1 R. 2. 1. For these Reasons it is supposed that the general words in the aforesaid Question will receive in Law the like Exposition as the other said recited Statutes have done And the Parsons and Vicars shall not thereby be charged the rather for that the Statute sets down the Inhabitants of the County where the certain persons that should do it cannot be known which is to be intended such Inhabitants as are chargeable to Pontage which Spiritual persons are not but excepted as aforesaid CHAP. XVIII Of Vicars Vicarages and Benefices 1. The Vicar and Vicarage described according to Law 2. What
Church so erected is by the Consecration thereof actually delivered up and made over as it were to God himself it thenceforth ceases to be of any mans property or of any Human Dominion for Quod Divini Juris est id nullius est in bonis § nullius Inst de Rer. Divis And by what is Recorded in the Life of Bishop Vlrick it should seem as if the Right of Presentation originally were in the Diocesan for the Author there saith That if any Erected a Church the Bishop consented Si legitimam Ecclesiae dotem in manum ejus Celsitudinis dare non differret c. And after the Endowment and Consecration thereof the care of the Altar was committed by him to the Priest and the Advowson firmly conveyed to the lawful Heir by the putting on a Robe Author vitae Udalrici c. 7. p. 52. Edit August Vindel. 1595. But the Bishops understanding this as a matter more of Care than of Power as appears by these moderate expressions of Nominare Praesentare or Commendare they were willing the Lay-Patron for his better encouragement to such Pious works should share with them in this priviledge which Panormitan calls Jus â—onorificum yet so as that this transference of the Bishops unto Lay-Patrons should still remain under such a Limitation as that it should be necessary for the Patron to have recourse to the Bishop for the qualifying his Clerk for the Rectory by Ordination And the Bishop's prudent compliance with Lay-Patrons in this matter was not in those days without good reason if we consider what a paucity of publick Churches there then were insomuch that for want or instead thereof they frequently then said Prayers under a Cross in the open Field as is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonicae gentis c. non Ecclesiam sed Sanctae Crucis Signum c. diurnae Orationis sedulitatem solent habere Hodaeperic Hierosolym Wilibald Extat ad Canisium Tom. 4. Antiq. Lect. par 2. pag. 486. Edit Ingolst 1603. Yea and where perhaps some Churches were many of them were no better than those mentioned by Asser Bishop of Shirburne in King Alured's daies which were of so mean a structure that frequently the wind entering per parietum rimulas did blow out the Candles set before the Reliques which gave occasion to that ingenious Prince to teach us by his dexterity the mystery of making Lanthorns Ex Lignis Bovinis Cornibus 4. In the Infancy of the Christian Faith in this Island under the Saxons several particular Lords of Grand Seignories Regis ad Exemplum erected particular Churches and having Endowed them with Lands reserved to themselves and their Successors for ever a right and power to confer them on such as were meetly qualified for the same And this they did in imitation of those Kings who then Reigning here erected Cathedrals Abbies Priories Churches c. 5. An Advowson being a right of Presentation as aforesaid reserved by a Founder to himself his Heirs and Successors is applicable to other Ecclesiastical Foundations as well as those of Churches as appears by the several Quare Impedits brought on several occasions so that albeit it hath been said that by the Grant of a Church the Advowson passed and when he gave the one he gave the other yet is the word Advowson not improperly applicable to any thing wherein a Quare Impedit will lie And he in whose Right such Presentation is rested is by the Provincial Constitutions of this Realm termed Advocatus Ecclesiae because as the Constitution hath it tueri defenders Ecclesiam ejus jura tenetur ad instar Advocati qui in Judicio Causam alicujus defendit Lindw Provin Const de Foro Comp. cap. Circumspecte ver Advocatus Which every Patron is obliged to do whence Patronus and Advocatus Ecclesiae are in effect Synonymous yet in Lindwood we have the Question put whether there be any difference inter Patronum Advocatum Ecclesiae Lindw Const Prov. de homicidio cap. Sacri Gloss ibid. Where though the prevailing opinion be for the Negative yet you will also there find very Orthodox Authority for the contrary and that Advocatus intelligitur non pro Patrono sed pro Defensore Ecclesiae Gloss ibid. as appears there by Lindwood that Famous Canonist totius Orbis Britannici who being Doctor of Laws Chaplain and Official to the Archbishop of Canterbury in the time of H. 5. was by reason of his great Experience and Abilities in National Laws as well as Provincial Constitutions sent as his Embassador to the Crowns of Spain and Portugal and at his Return about An. 1422. compiled what now is extant to his Immortal Memory and Dedicating the same to the said Archbishop it was after about An. 3505 being first revised by Wolfgangus Hopylius printed at Paris at the cost and charges of William Bretton Merchant of London Mention hereof is here made in regard of the plentiful use here made of this Eminent Author in this Ecclesiastical Abridgment and that rather in the midst of this Subject touching Advowsons as presuming that for the reason aforesaid a Quare Impedit will not lie in the case of this digression 6. The Right of Patronage is it seems by the Common Law a real Right fixed or vested in the Patron or Founder in the Church wherein he hath as absolute a property and Ownership as any man hath to his Lands and Tenements or any Freehold whatever And that the Advowson or Patrons Right to Present is a Temporal and not a Spiritual Inheritance For at the first Creation of a Mannor if Lands were given to erect a Church thereon the Advowson thereof became appendant to that Mannor and reputed as parcel thereof which being Temporal the other became so also as an Accessary to the Principal for which reason such an Advowson passeth by the Grant of the Mannor cum pertinentiis Yea it hath been adjudged That by the Grant of a Mannor without making any mention of the Advowson the Advowson also passed because it was parcel of and appendant to the Mannor And it hath been ever held That by the Common Law an Advowson is a Temporal Inheritance for that it lieth in Tenure and may be holden either of the King or of a Common person and hath been held of the King in Capite or in Knights Service And were a Quare Impedit hath been brought the Plaintiff hath counted that the Defendant held the Advowson of him by Homage and Fealty And it hath been agreed that an Advowson doth lie in Tenure and that the Lord may distrain in the Glebe-Lands for Rents and Services the Patron 's Cattel if any be there found upon the Land but not the Cattel of a Stranger 7. Other Reasons it seems there are at the Common Law which prove That an Advowson is a Temporal Inheritance for that a Writ of Right of
Advowson lieth for him who hath an Estate in an Advowson in Fee-simmple or Right of an Estate therein to him and his Heirs in Fee-simple Which Writ being Quod clamat tenere de te doth suppose a Tenure and lieth not only for the whole Advowson but also for some part thereof As also because a Praecipe quodreddat lieth for it as hath been Adjudged As also that a Common Recovery may be suffered of an Advowson as hath been likewise Adjudged As also because an Advowson as other Temporal Inheritances may be forfeited by Attainder of Treason or Felony or lost by Usurpation six months Plenarty Recusancy Outlawry Negligence or Lacks of Presentment Translation or Cesser and given away in Mortmain As also for that the Wife shall be endowed thereof and have the third Presentment and the Husband shall be Tenant thereof by the Courtesie also it is successively devisable among Coparceners that the priority of Presentment shall be in the eldest Sister likewise it may pass by way of Exchange for other Temporal Inheritance and albeit during the vacancy of the Church it be not in it self valuable yet otherwise it is as to an Incumbent and by Grat of all Lands and Tenements an Advowson doth pass if not by Livery yet by Deed is transferable as other Temporal Inheritances and pass with the Mannors whereunto they are appendant by Prescription unless there were before a severance by Grant Deed Partition or other Legal Act which Prescription is so requisite to Appendancy as without which it cannot well be at all 8. An Advowson in Gross is understood as under a more beneficial qualification than that which is Appendant and that which is Appendant may by severance become an Advowson in Gross And therefore in the Case where a man being seized of a Mannor whereto an Advowson was Appendant and by Deed granting one Acre belonging to that Mannor unà cum Advocatione Ecclesiae did further by the same Deed give and grant the said Advowson the Question was whether the Advowson did pass as Appendant to the Acre or as an Advowson in Gross And the better Opinion was That by that Grant the Advowson was severed from the Mannor and was become in Gross for that the Deed shall be taken most beneficial for the Grantee to have the Advowson in Gross and not as Appendant to the Acre But in that case it was Agreed If the whole Mannor had been granted then the Advowson had passed as Appendant and not in Gross Yet an Advowson Appendant to a Mannor descending to divers Coparceners making Partition of such Mannor without mentioning the Advowson remains Appendant notwithstanding such Division and Severance from the Mannor Yea although the Mannor of D. to which an Advowson is Appendant be granted and by the same Deed the Advowson also of the Church of D. So as it is named no otherwise than in Gross yet it shall thereby pass only as Appendant 9. If the King makes a Lease for life of a Mannor to which an Advowson is Appendant without making any mention of the Advowson the Advowson remains in the King as in Gross as was granted by the Justices And it was said by them That in such case by Grant of the Reversion Habendum the Reversion with the Advowson the Advowson passeth not to the Patentee for that the Advowson was severed and became in Gross as to the Fee And in another Case where it was found before Commissioners That A. was seized of a Mannor to which an Advowson was appendant and that he was a Recusant convict whereupon two parts of the Mannor were seized into the Kings hands who leased the Mannor with Appurtenances and all profits and commodities and Hereditaments to the same belonging unto J. S. for 21 years if A c. and afterwards the Church became void In this Case it was held That albeit there was no mention in the seizure of the Advowson yet the Presentment belonged to the King and that the King alone should Present Secondly That there were no words in the Kings Grant to J. S. to carry away the Advowson from the King and that notwithstanding that Grant the Advowson remained still Appendant to the Mannor 10. By words implying meerly matter of profit or things gainful as Cum omnibus commoditatibus Emolumentis proficuis advantagiis and the like an Advowson will not pass because it is contrary to the nature of an Advowson regularly and therefore the Advowson of a Vicarage appendant to a Prebend passed not by a Lease with such words of several parts of the Prebend to which such Advowson was appendant Not will an Advowson appurtenant to a Mannor pass by the Grant of an Acre of Land parcel of that Mannor cum pertinentiis otherwise if the Grant be of the Mannor it self cum pertinentiis Yet in a Case where the King being seized of a Mannor to which an Advowson was appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet it was Adjudged in that Case That the Advowson did not pass Nor will an Advowson if once Appendant pass without special words of Grant thereof which may not be strained in the construction thereof to an unusual or unreasonable sense for which reason an Appropriation will not pass by the name of an Advowson but as aforesaid an Advowson of a Vicarage may be Appendant to a Prebend All which hath been Resolved in the fore-cited Case And if Tenant in Tail be of a Mannor to which an Advowson is appendant the Church being full and he grants proximam Advocatione and then dies by his death the Grant becomes meerly void as was also Resolved in Walter and Bould's Case In a Quare Impedit The Case was between the Chancellor and Scholars of Oxford and the Bishop of Norwich and others The Plaintiff counted upon the Statute of 3 Jac. That J. S. being Owner of an Advowson 2 Jac. was a Recufant convict and that afterwards the Church became void and so they by the Statute ought to Present One of the Defendants pleaded That the Advowson was appendant to a Mannor and that two parts of the Mannor were seized into the Kings hands by Process out of the Exchequer and that the King by his Letters Patents granted the Two parts to the Defendant with the Appurtenances and granted also all Hereditaments but Advowsons were not mentioned in the Letters Patents and so said the Presentation did belong to the Defendant It was Resolved That the Advowson did not pass by the word Appurtenances without mention of Advowson or words Adeo plena integra in tam amplo modo forma as the Recusant had the Mannor 11. In case a Patron be Outlawed and the Church becoming
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
placuit 10. q. 3. Rebuff de Commenda who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati sumere ex eo alimenta debita persolvere sicut is qui titulum habet c. 1. de Solutio hoc afferit Archidiac in cap. qui plures 21. q. 1. 7. The grand Case of a Commendam was that of Evans and Kiffin against Ascuth which being two daies argued by the Judges and by Noy Attorney is acutely and succinctly Reported thus viz. In Trespass Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland But before Consecration or Confirmation he obtained a Patent with large words Non obstante retinere valeat in Commendam the said Deanary c. And afterwards he was chosen Bishop of Bristol and then also before Installation he obtained another Patent with a more ample Dispensation of retaining the Deanary in Commendam It was Agreed by all That the Church or Deanary c. in England shall be void by Cession if the Parson or Dean c. be made a Bishop in Ireland For the Canon Law in that is one through all the World Also Ireland is governed by the Laws of England and is now as part of England by Subordinacy Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Case Confirmation under the Great Seal of England of Presentation to a Church in Ireland of the Heir of the Tenant of the King and that a Dispensation under the Great Seal of England is good in this Case without any Patent of it in Ireland vid. 8 Ass 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good Note 20 H. 6. 8 Scir fac sued in England to Repeal a Patent under the Great Seal of Ireland vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England Note Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King under the Great Seal of England yet the King may let them be chosen per Congé d'Eslire c. 1 Noy Attorney Argued at Bar and so stated the Points of the said Case by themselves If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop for it is Agreed That a Commendatary Dean by Recipere in Commend cannot Confirm because he is but a Depositarius Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name and by such a Commend he may take the profits and use Jurisdiction and yet is not a Dean compleat Note he may make a Deputy for Visitation but not for Confirmation of Leases Note if there be two Deans in one Church both ought to Confirm Vid. Dy. 282. Co. Inst 30. a. 2 The Second point if such a Bishop be chosen to another Bishoprick if now the first Church in Commend admitting that there was a Full Incumbent be void presently by the Election and assent of the Superiour viz. the King And it seemed to him that it was because there need not be a new Consecration and he vouch'd Panormitan 2. par 101. The Bishop of Spires was chosen Bishop of Trevers and had the assent of the Pope and that he came to Trevers and there found another in possession and he would have returned to the former Bishoprick and could not He also Cited 8 Rep. Trollop's Case That the Guardianship of the Temporalties cease by the Election of a new Bishop Note that Serjeant Henden who argued on the contrary vouch'd Mich. 4 Jac. May Bishop of Carlisle made a Lease to the Queen and a Commission issued out of the Exchequer to take it and the Dean and Chapter Confirmed it before the Inrolment of it and yet Adjudged good That Case was for the Castle of Horne First the Judges having Argued two daies Resolved 1 That all Commendams are Dispensations and that Cession commenced by the Canon and Council of Lateran 2 That the King may dispense with that Canon 11 H. 7. 12. For the Pope might and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris and not by Introduction novi Juris and by that Statute a concurrent power is given to the Archbishop of Canterbury and may be granted to the King or by the Archbishop c. 3 That the Dispensation after Election to the first Bishoprick and before Consecration c. and also the Dispensation after Election to the second Bishoprick and before Confirmation is good enough in both Cases and he remains a good Dean to Confirm c. and afterwards the Judgment in the Case being an Action of Trespass was given accordingly 8. A Commendam is to be granted Necessitate evidenti vel utilitate Ecclesiae suadente and in the Infancy of the Church quando defuerunt Pastores they were necessary A Commendam ordinarily is but for six months and he that hath it is Custos only the other is extraordinary and that is for life and he is an Incumbent The King by his Prerogative Royal may grant a Commendam without any Statute yet if such Commendam shall be good it may be very mischievous to the Patron It is it seems agreed in the Books of the Common Law that the use of Commendams in their first Institution was lawful but not the abuse thereof and that a perpetual Commendam viz. for life was held unlawful and condemned by a Council of 700 Bishops It is likewise Reported to us That where the Incumbent of a Church was created a Bishop and the Queen granted him to hold the Benefice which he had in Commendam It was the Opinion of the Justices That the Queen had the Prerogative by the Common Law and that it is not taken away by the Stat. of 35 H. 8. 9. In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale on a Special plea pleaded by Wale the Incumbent the Kings Attorney demurred in Law The Case in substance was this viz. the Corporation of Kilkenny being Patrons of a Vicarage within the Diocess of Ossery Presented one Patrick Fynne thereunto who was Admitted Instituted and Inducted After that during the Incumbency of the said Fynne Adam Loftus Archbishop of Dublin and Ambrose Forth Doctor of the Civil Law being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall then Bishop of Ossery That the said Bishop unum vel plura Beneficia curata vel non curata sui vel alieni Jurispatronatus non excedentia annuum valorem quadraginta Librarum adtunc vacantia vel quae per imposterum vacare contigerint perpetuae Commendae titulo adipisci occupare retinere omnesque fructus
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
been due to the Pope de jure Divino speeially for that Anthony de Becke for whom the Prescription was made was a Reteiner to the Court of Rome and made Bishop of Norwich by the Pope Vid. Co. Instit par 4. cap. 14. 2. It was an old Observation and of no less truth than Antiquity that there never was any Invention that ever brought more Treasure to the Bishop of Rome than this of Annates which is of far greater Antiquity than some Modern Writers suppose so Polydore Virgil. Pol. Virg. de invent rerum lib. 8. cap. 2. Et Annates more suo appellant Primos fructus unius Anni Sacerdotii vacantis aut dimidiam eorum partem Historians do not agree what Pope first imposed First-Fruits Wals An. Do. 1316. Trivet Ranulphus Cistrensis lib. 7. c. 42. Polyd. Virg. ubi supra Platina Fox c. This Tribute or Revenue long since when the Bishop of Rome had not such large possessions as now he hath yet at vast expence and charge to uphold and maintain his Dignity was gradually by little and little imposed on such vacant Benefices as himself conferred and bestowed which as Hostiensis contemporary with P. Alex. the Foâ—rth doth affirm was often complained of as a very great Grievance so that after this Labarell declared in the Council at Vienna That Clement the Fifth who was made Pope in the year 1305. forbad the receiving thereof and that laying the same aside the Twentieth part of the Sacerdotal Revenues should instead thereof be annually paid to the Bishop of Rome but this not taking effect the Pope so retained the said Annates to his Exchequer as that to this day it remains one of the considerablest parts of his Revenue Polyd. Virg. ubi supr 3. The Canonist Gammarus in favour of the Apostolick See asserts that Annates are very justly required by the Pope pro Conservando decenti statu and compares it to Aaron the High Priest's receiving the Tithe of Tithes the Tithe of such Tithes as were given to the other Priests adding withal that Annates are of very great Antiquity Gammar in Extr. Julii 2. de Simon Papae Elect. nu 253. in Repet Jur. Can. To. 6. par 2. fo 54. as appears by the Concessions of Jo. Andâ—aeas and of Hostiensis Jo. Andr. Hostiens in c. inter caetera de Offic. Ordin the which Tho. Aquinas doth not deny saying That it is but consonant to Natural reason that he qui omnium curam habet de Communi alatur and thence concludes That the Pope may require Tithes and Annates from the Clergy Aquin. 2. 2. quaest 87. artic 4. As to the Original of these Annates Platina and Blondus report them to have been first exacted by Pope Boniface the Ninth Others assert it to be in the time of Pope John the Two and twentieth which was above Seventy years before that Boniface But Johannes Eccius in his Enchiridion against the Lutherans says that both Blondus Platina and Gravaminus whom he there nick-names Ecclesiae Consarcinatores were all in an Error in ascribing the original of Annates to this Boniface or that John for says he quoting Johannes Andâ—aeas for his Author in the Council at Vienna An. 1311. whereof P. Clement the Fifth was President which was long before Boniface or John the 22d there was a Debate concerning Annates Jo. Andraeas ubi supr Gam ubi supr But their supposing Clement the Fifth to have been after John the 22d was the ground or reason of their Error 4. Aumone or Frank Almoign is the same which we call Libera Eleemosyna or Free Alms whence that Tenure is known by the Name Tenure in Aumone which is a Tenure by Divine Service It is a certain Tenure or Title of Lands at the Common Law as when Lands or Tenements are freely given in the way of Alms to some Church or Religious House upon this condition or consideration That Divine Service shall be offered and Prayers made pro bono animae Donantis or the like So that this Aumone or Frank Almoign is no other than a Tenure or Title of Lands or Tenements bestowed upon God by giving them to such as devote themselves to the Service of God for pure and perpetual Alms whence the Feoffors or Donors cannot demand any Terrestrial Service from the Feoffors so long as the said Lands and Tenements remain in their hands With this agrees the Grand Customary of Normandy cap. 23. and whereof Bracton writes at large But Britton makes another kind of this Land which is given in Alms but not in Free Alms because the Tenants in this are obliged to certain Services to the Feoffor 5. In the Case of Dennis against Drake it was said That if a man be Instituted to a Benefice he ought to pay the First-Fruits before Induction by the Statute but by the Common Law it was otherwise for he is not to have the Temporalties until Induction and therefore he could not pay the First-Fruits But another person cannot be Presented to this Benefice during the continuance of the first Institution And an Institution to a second Benefice is a present Avoidance of the first 6. Decimae id est Tenths of Spiritualties were perpetual and paid to the Pope till Pope Vrban gave them to R. 2. to aid him against Charles King of France and others who supported Clement the Seventh against him And 5 H. 3. by the Pope's Bulls all Tenths were paid to H 3. for years These were given to the King 26 H. 8. cap. 3. Vid. Lambert de prist Angl. c. fo 128. cap. 10. St. ibid. inter Leges Inae fo 78. cap. 4. CHAP. XXXI Of Altarage 1. The genuine signification of the word Altarage what is comprehended under that word Two Cases at the Common Law touching Altarage 2. A severe Canon made by Cardinal Otho against the gross abuse of Altarage an Artifice to defeat that Canon And whether Altarages may be let to Farm 3. Whether Tithe-Wool will pass by the word Altaragium 4. The word Altaragium shall be expounded according to the use and eugome of the place 5. Whether Tithe-wood may pass to the Vicar by the word Altaragium 1. ALtarage or Altaragium a word though now somewhat obsolete yet in signification of Ecclesiastical cognizance and in the intent thereof practicable at this day Mr. Blount in his Nomo-Lexicon takes notice thereof as a word which comprehends not only the Offerings made upon the Altar but also all the profit which accrues to the Priest by reason of the Altar Obventio Altaris And for further proof and illustration of this matter there cites a President out of the Orders and Decrees of the Exchequer in the Reign of Queen Elizabeth to this effect That upon hearing of the Matter between R. T. Vicar of West-Haddon and E. Andrewes it was ordered That the said Vicar should have by reason of the words Altaragium cum manso Competenti contained in the
Adrian in the time of Offa King of Mereia during Englands Heptarchy in An. 786. Answ Possibly it might be so what follows thence does a thing lawful in it self become unlawful because a Pope enjoyns it what if he had commanded Alms to be given instead of Tithes must we therefore be neither honest in payment of the one nor charitable in giving the other because there was a Command of a Pope in the case 4. That AEthelstane Edmond Edgar Canutus and AEthelwolfe Kings of England Ordained the payment of Tithes meerly to pacifie their Consciences and thereby to make Atonement for their Blood-guilty Souls Answ Admit it were Historically true yet the final Cause of any Action or the End for which a thing is done alters not that quality that is inherent naturally in the thing A thing lawful in it self commanded for a wrong End perverts the Action not the thing if a man gives Alms that the Poor may be drunk though that be no Alms yet it doth not render Alms as unlawful nor alter that quality of Charity which is inseparable from Alms. 4. Tithes Anciently were Fourfold as 1 That which the People paid to the Levites 2 That which the Levites thence paid to the Priests 3 That which the Jews reserved for Expence in their Solemn Feasts when they went to the Tabernacle or Temple 4 A Third years Tenth which was then laid up for the Levite and the Poor The first of these is held a Natural Moral and Divine Tribute the second and third Ceremonial the fourth Judicial The Jews had also their Theruma which was not properly Tithe but a second kind of First-Fruits There were two kinds hereof the one called the Great Theruma the exact quantity whereof was not defined by Moses but the Ancient Lawyers determin'd that it might not be less than the fourtieth fiftieth or at least the sixtieth part of the kinds already dress'd and prepared as Wheat Fann'd Oyl and Wine Corn in the Ear taken from the heap and given to the Priests The other was the Lesser Theruma which was that when the former was taken away for the Priests the rest of the Heap was Tithed for the Levite the tenth part whereof the Levites gave to the Priests which was called the Tithe of the Tithe or the Theruma of the Tithe 5. Because the Law of Moses hath been divided into Three parts viz. Moral Judicial and Ceremonial some of the Schoolmen have thence conceived That Tithes admit the like division whereof the Moral part was only a necessary Maintenance for the Minister and therefore natural and perpetual The Judicial part was the number of Ten as fit only for the Jews and therefore positive and remotive The Ceremonial part was the Mystery contained in this Number of Ten which being as they taught but a shadow only was vanish'd and abolish'd with the Law it self and thence inferr'd that the Quotity or precise number of Ten being taken away by reason of the Ceremony a competency now only remains for the Minister out of the Tithes This Conceit hath occasioned no small prejudice to the Church although it hath no more probability of truth in it than that whereon it is grounded viz. That the Number of Ten is a type of Christ and that the inferiour Digits do signifie the People Levi himself paid Tithes to the first Priest we ever read of that is he paid them in Abraham which being urged by the Apostle against the Levitical Ceremonies argues that they are more than meerly Levitical and Ceremonial indeed if we consider their assignment to Levi's Tribe they are such but not otherwise The Sabbath and Tithes were both before the Law in their very Numbers respectively and were but repeated by Moses under the Law because they had been approved of God before the Law in the self-same Numbers The Sabbath is said to have a Moral and a Ceremonial part The Moral is perpetual and unalterable which is that God should have a Seventh day the Ceremonial being Typical of our Rest in Heaven is only positive and not so unalterable but that it might be as it is changed from the Seventh day of the Creation to the Seventh after our Saviours Resurrection So Tithes they also have a Natural and a Positive part the Natural is permanent and unalterable which is that God hath reserved to himself a Tenth of the increase c. for the Maintenance of his Ministers in which sense immediately after the dissolution of the Jews policy the Christians of the Primitive Church as soon as they could get any outward form of a Church and peace from Persecution received it in the very Quotity the Positive is That the Lord annexed those Tithes by Moses to the Priests and Levites for their maintenance during the dispensation of the Mysteries under the Law and thâ—refore changed by the Christians in the Primitive Church to the Christian Ecclesiasticks so that how this Quotity can be changed into a Competency sâ—â—ms neither demonstrable nor warrantable by the Word of God but that the Quotity ought to remain as a perpetual Right due to God and his Church And if any shall argue that Tithes are not to be paid or required in a Protestant Church because they have been ever so upheld in the Church of Rome such may as well argue they ought not to be paid in a Christian Church because they are paid to Mahumetan Princes for so they are and that because they were Priests for every Husbandman is bound to pay for Tribute the Tenth part of all his Corn to the Patriarch for the use of the Prince the relief of Impotent people and Widows and for maintenance of War against the Enemy Purch Pilgr lib. 6. cap. 1. § 3. p. 803. nu 10. 6. Tithes which anciently were meerly Ecclesiastical are now made Temporal Inheritances therefore are they Assets in the hands of the Heir the Wife endowed of them and the Tenant by the Courtesie shall hold them They are not grantable for life or years or for a longer term than one year but by Deed They cannot be extinguished by a Fâ—offment of the Land nor pass by a Devise of Lands with all profits and commodities thereto belonging and yet may be exchanged for Temporal Inheritances Anciently and at the Common Law there were none qualified to receive them but either an Ecclesiastical person or a mixt person as the King They are not extinct by their coming into any hands but of the Parson himself And that which is given in lieu of them is turned into a Spiritual Fee It is not paid more than once for one and the same thing in one and the same year and that only for the neat and clear profit of the thing Tithable It must be paid in kind if there be Corn now where Wood grew before or Wood planted now where Woodlands formerly were And the Law allows the Parson a convenient time to
That the Land was parcel of the Glebe of the Parsonage and that the said Stile did Lett the said Glebe being twenty four acres to Miles for years rendring thirteen shillings four pence Rent and in a Prohibit on the Case was if Tithes were to be paid And Wray said That although it was parcel of the Glebe yet when it was Leased out Tithes ought to be paid without question But there may be a doubt where the Rent is reserved to the true value of the Land but here the Rent is of small value wherefore Tithes shall be paid also And the Reservation of the Rent was Pro omnibus exactionibus demandis yet the Justices took no regard of these words But Godfrey said that those words would discharge him But Wray on the contrary for that this Tithe is not issuing out of the Land but is a thing collateral and if a Parson do Release to his Parishioners all demands in the Land yet Tithes are not thereby Released for such general words will not extend to such a Special matter 27. A. Parson of B. in consideration of 120 l. paid by C. one of his Parishioners did accord and agree with him That he and his Assigns should be discharged of Tithes during the time that he should be Parson C. made a Lease to D. A. did Libel against him for Tithes and D. pray'd a Prohibition upon the said Contract And if this were sufficient matter for a Prohibition was the question because it was by word only and without writing which amounts only to a Cause of Action upon a Promise for C. but no Action for his Lessees neither can this amount to a Release of Tithes for as Tithes cannot be Leased without Deed so they cannot be Released or discharged without Deed. Gawdy Justice Tithes cannot be discharged without Deed unless by way of Contract for a Sum of money and he cited the 21 H. 6. 43. Fenner for that year in which the Discharge was made it was good by way of Discharge without Deed because the Parson for that year had as it were an Interest but such Discharge can have no continuance for another year for default of a Deed and so a Promise being no Discharge it is no cause of a Prohibition But Gawdy held as afore And the Court Popham succeeding Wray Chief Justice upon his death held that the Agreement being by parol was not good and Fenner then said That without Writing the Agreement could not be good between the parties but for one year And the Court awarded a Consultation But upon search made no Judgment was entered in the Roll 28. Note That in Layton's Case it was said by the Court That a Parson may sue pro modo Decimandi in the Ecclesiastical Court. As if a Parishioner will not put his Tithes into Cocks when he ought by the Custome so to do But then the Suit ought to be Special for not putting it in Cocks and not generally for not setting forth the Tithe 29. It was likewise agreed by the Court in Clark's Case against Proâ—se that the Ecclesiastical Court may take cognizance of a Modus Decimandi The Case was this Clark a Parson sued Prowse one of his Parishioners per mod Decimandi in the Ecclesiastical Court and alledged a Custome in his Bill so called in the Report to have two shillings of the pound for every House and Shop in the Town and upon that Suit the Defendant there answered to the Custome Quod non credit esse vera And so to have here a Prohibition it was alledged That the Defendant was a Butcher that set open Stall in the Market only to fell Flesh there and that he had not any other Shop or House And it was agreed by the Court That a Parson may sue per mod Decimandi in the Ecclesiastical Court But if it be denied the Chief Justice as also Jones said That in that case they could proceed no further because they cannot try matters of Prescription there and if they proceed a Prohibition But in this Case the Prohibition was denied because Doderidge said That for the Reasons supra power is given to the Spiritual Court to examine that matter because it is not a denial of the Prescription but it ought to be by Allegation 30. It was said in Catesby's Case That if a Copyholder of the Kings Mannor pretendeth Prescription for a Modus Decimandi against the Parson the Right of Tithes shall be tried in the Exchequer and a Prohibition was granted to the Ecclesiastical Court in this Case 31. In Pool's Case against Reynold Prescription to have Deer out of a Park in discharge of all Tithes and after the Park is disparked P. brought a Prohibition against R. the Surmise was That de temps d'ont memory c. within the Parish of C. there was a Rectory appropriate and the Chappel of S. annexed therewith Et una Vicaria perpetua ejusdem Ecclesiae de C. dotat And whereas the said P. â—or six years last past had occupied one House 100 acres of Land 20 of Meadow 40 of Pasture called Shute-Park within the said Parish of C. which said Tenements were anciently a Park and now disparked c. and converted into the said House 100 acres c. And that all the Occupiers of the said Park de temps d'ont memorie until the Disparking had paid to the Vicar there one Buck of the Summer-season and one Doe of the Winter-season c. in discharge of all Tithes of the said Park until the Disparking and after the disparking in discharge of all Tithes of the said Tenements which they had accepted for all the time aforesaid until the Disparking and after or otherwise agreed with the Vicar for them and traversed this Prescription and found for the Plaintiff In Arrest of Judgment it was moved by Henden That this Prescription extends to the Land quatenus it is a Park and that being destroyed the Prescription is gone c. and if it be to be paid or delivered out of the Park then it is determined vid. Lutterel's Case Coke lib. 4. Also this Prescription is against the benefit of the Church and shall not be enlarged and the Wood which is sold out of the Park shall not be discharged 14 Jac. Conyer's Case in C. B. Prescription That the Parson had two acres of Meadow given in discharge of all Tithes of Hay-ground viz. of all the Meadow in the Parish if any Arable Land be converted into Meadow it extends not to discharge that vid. Lutterel's Case Coke lib. 4. fo 8â— That an Alteration in prejudice to the Parson determines the Prescription vid. Terringham's Case lib. 4. He which hath Common purchased part of the Land all is extinct for it is his own Act but vide the principal Case in that of Lutterel adjudged That building of new Mills in the same place and converting of Fulling-Mills into Corn-Mills
before the Birth of such Child for in that Case he is not reputed a Bastard who cannot inherit Land as Heir to his Father nor can any person inherit Land as Heir to him but one who is Heir of his Body Otherwise it is in case the Child were begotten by him who after the Birth of the Child doth Marry his Mother For in that Case notwithstanding such Marriage subsequent to the Birth the Child is reputed a Bastard in the judgment of the Common Law as being born out of Wedlock though according to the Ecclesiastical Law the Child in that case is reputed as Legitimate But if one Marry a Woman and dye before Night without ever bedding her and she after happen to have a Child within possibility of conception in respect of time computable from such Marriage it seems it shall be accounted his Child and Legitimate 9. If a Child be born within the tenth Month computing thirty days to the Month next after a Mans death it shall be reputed his Child as a Mulier but the most natural time is nine Months and ten days computing twenty eight days to the Month which is forty Weeks or any day in the tenth Month may be natural enough Also the Children begotten under a second Marriage after a Lawful divorce from a former are Legitimate and not Bastards And the Child wherewith the Mother is visibly big when she taketh a second Husband shall be reputed the Child of the former Husband though born after Marriage with the second Otherwise if at her second Marriage she were so privlly with Child as that it could not be discerned understand it with this limitation if by possibility of nature it may be so And if a Widow take another Husband within ten days next after the death of her former and be delivered of a Child eleven days before or after forty Weeks from the death of the said former Husband it shall be reputed the Child not of the former but of the later Husband And in one Thecker and Duncombes Case it was adjudged that a Woman may have a Child in thirty eight Weeks and that by cold and hard usage she may go with Child above forty Weeks which was mention'd by the Court in the Case of one Owen against Jevon in an Action of the Case for saying This is the Whore that my Man C. begat a Bastard on and upon a Verdict for the Plaintiff it was moved in arrest of Judgement that the words are not Actionable because there is no special loss or dammage alledged by the Plaintiff and that in one Lightfoots Case against Pigot it had been ruled that an Action lies not for saying a Woman had a Bastard but it being argued on the other side that the words are Actionable because if they were true the Party of whom they are spoken is punishable by the Statute of 7 Jac. with corporal punishment Judgement was given for the Plaintiff Nisi 10. The punishment of a Woman that hath a Bastard that may be chargeable to the Parish is the House of Correction for one year by the Statute 11. Although in the judgement of the Common Law a Bastard be reputed quasi nullius Filius insomuch that if being seized of Lands in his own right he dye without Issue of his Body they may Escheat yet even by that Law the Bastard in respect of his Mother is said to be a Son But in respect of the the Father he is said to be nullius Filius and therefore in the Case of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition it was held that if the Mother dispose of all her Lands holden in Knights Servive to her Bastard-daughter by conveyance in her life-time that the same is out of the Statute of 32 H. 8. because she is but a meer Stranger to the Father because nullius Filia and the said Statute speaks of Lawful generation And in the 39 Ed. 3. 42. in a Praecipe where a Bastard was named Filius J. S. the Writ for that reason did abate For the same reason also it is that in a conveyance by a Father to his Bastard-son natural affection is not a sufficient consideration for that he is a Stranger in Law although he be a Son in Nature And yet it seems if a Grant be made to a Bastard by the Sirname of him who is supposed to beget him it is good if he be known by such Name and yet in truth he is nullius filius And if Husband and Wife divorced causa Praecontractus the Issue hath lost his Sirname for Cognomen Majorum est ex sanguine tractum and the Issue now is Bastard and nullius filius yet because he had once a Lawful Sirname it is a good ground of reputation to make him a reputed Son which is a good Name of purchase And it hath been resolved that a Child begotten by a second Husband living the former of a Woman divorced from the former causa Praecontractus is legitimate and no Bastard But in another case that a Child begotten after Marriage solemniz'd infra annos nubiles and for that cause after divorced is illegitimate and a Bastard 12. A. takes B. to Wife and dies B. after forty Weeks and ten Days is delivered of a Daughter The question is whether the Daughter shall be Heir to her Father or a Bastard The Affirmative prevails and such a Child may be lawful Daughter and Heir to her Father for a Post-natus that is born after the forty Weeks may as well be an Heir as an Ante-natus that is born at the end of seven Months And a Child may be legitimate although it be born the last day of the tenth Month after the conception thereof computing the Months per menses solares non lunares according to the report given upon Oath by the learned Physicians in Alsop's Case If a Man hath Issue born by his Wife forty Weeks and eight Daies after his death as if he dye the three and twentieth of March and the Issue is born the ninth of January next following that Issue shall be held Legitimate for it may be Legitimate by nature and it seems the Common Law doth not limit any certain time for Legitimate Infants to be born p upon evidence at the Barr which concern'd the Heir of one Andrews it was resolved by the Court that Dr. Paddey and Dr. Momford Physicians should being first sworn in that case inform the Court upon their Oaths whether according to Nature such Issue may be Legitimate and they said that the exact time of the birth of an Infant is 280. dayes from the conception viz. nine Months and ten Days after conception accounting it by the Solar months viz. 30. days to each month but it is Natural also if he be born any time of 10 Months viz. in 40 Weeks for by such
Vi Laica removenda further explain'd 26. The Writ Quod clerici non eligantur in Officium 1. AGainst the unlawful Possessor who is the Usurper liveth Three Writs viz. One of the Right as the Writ of Right of Advowson and the other two of the Possession viz. A Quare Impedit and Darrein Presentment This Assize of Darrein Presentment or Assisa ultimae Praesentationis is a Writ which lieth where a man or his Ancestor hath presented a Clerk to a Church and after the Church becoming void by his death or otherwise a stranger presents his Clerk to the same Church in disturbance of him who had last presented This Writ is otherwise also used and differs from that of a Quare Impedit for the Quare Impedit lies upon the disturbance of one who hath the Advowson in his Presentation when the Church is void The other lies where a man or his Ancestors had presented before and now the Church becoming void again a stranger presents in disturbance of him who had last presented Where ever a man may have Assize of Darrein Presentment he may have a Quare Impedit but not e contra He that hath right to present after the death of the Parson and bringeth no Quare Impedit nor Darrein Presentment but suffereth a stranger to usurp upon him yet he shall have a Writ of Right of Advowson but this Writ lieth not unless he claim to have the Advowson to him and his heirs in Fee Simple Where the Ordinary Metropolitan or King presents for Lapse any of these Collatives will serve the Patron for a possession in his Assize of Darrein Presentment which Assize of Darrein Presentment may not be purchased pending a Quare Impedit for the same avoidance and therefore in the Case where William St. Andrewes brought a Writ of Assize of Darrein Presentment against the Archbishop of York Mary Countess of Shrewsbury and one Hacker aud the Bishop making default the Countess and Hacker pleaded in Abatement that the Plaintiff before the Writ purchased brought a Quare Impedit against the same Defendants and shews all certain which remains undetermined and averrs that they are both of the same avoidance And upon Demurrer the Writ was abated by Judgment 2. Assize de utrum or Assisa utrum is a writ which lieth for a Parson against a Layman or for a Layman against a Parson for Land and Tenements doubtful whether it be Lay-Fee or Free Almes These Writs are called Assizes probably either because they settle the possession and so an outward Right in him that obtains by them or because they were originally executed at a certain time and place formerly appointed or because they are tryed most commonly by especial Courts set and appointed for that purpose The Incumbent as touching his Right for his Rectory hath the onely Writ of Juris utrum and for his possession any other possessory Action 3. Quare Impedit is a Writ which lieth for him who hath purchased an Advowson in Gross or a Mannor with an Advowson thereunto appendant and against him who when a Parson Incumbent dieth or a Church otherwise becomes void disturbeth the other in the Right of his Advowson by presenting a Clerk thereunto being void Vhis Writ is distinguish'd from the former of Darrein Presentment or Assisa ultimae Praesentationis because this latter lieth as aforesaid onely where a man or his Ancestors formerly presented but the Quare Impedit lies properly for him who himself was the Purchaser of the Advowson though he that may have Assize of Darrein Presentment may have the other if he please but not so Vice versa as was also before observed Yet it is said in Reg. Orig. f. 30. That a Quare Impedit is of a higher Nature than an Assize of Darrein Presentment because it supposeth both a Possession and a Right Which Quare Impedit the Executors of a Testator may as well as himself might have upon a disturbance made to the Presentment and so was the Opinion of the whole Court in Smallwoods Case awainst the Bishop of Coventry and Lichfield that the Executors may have a Quare Impedit upon a disturbance made to the Presentation which Writ lieth also of a Chappel Prebend c. And in case after the death of the Ancestor of him that presented his Clerk unto a Church the same Advowson be be assigned in Dower to any Woman or to Tenant by the Courtesie which do present and after the death of such Tenants the very Heir is disturbed to present when the Church is void it is in his election whether he will sue the Writ of Quare Impedit or of Darrein Presentmet the which it seems is also to be observed in Advowsons Demised for term of life or years or in Fee Tail And Dammages shall be awared in both these Writs that is if the time of Six Months pass by the disturbance of any so that the Bishop doth thereby Collate to the Church and the very Patron lose his Presentation for that turn Dammages shall be awarded for two years value of the Church And if the Six Months be not elapsed but the Presentment bederaigned within that time then Dammages shall be awarded to the half years value of the Church And if the disturber hath not wherewith to satisfie the Damages where the Bishop Collateth by lapse of time he shall suffer two years Impisonment and half years imprisonment where the Advowson is deraigned within the half year Likewise he that recovers a Mannor whereunto an Advowson is appentlant being disturbed to present when the Church is void shall have a Quare Impedit In which as also in Assise of Darrein Presentment plenarty of the Defendants or Disturbers party is no plea but two Quare Impedits of one Church and for one avoidance a man cannot have In the Case between the King and the Bishop of Norwich and Saker and Cole it was resolved that when one is admitted instituted and inducted by the presentation of a common person though it was upon an usurpation upon the King yet the King cannot remove the Incumbent without a Q. Impedit brought for the Church is full of him till he be removed Cro. par 2. 4. Ne admittas is a Writ that lieth for the Plaintiff in a Quare Impedit or him that hath an Action of Darrein Presentment depending in the Common Pleas and feareth that the Bishop will admit the Clerk of the Defendant during the dependency of the Suit betwixt them This Writ must be sued within six months next after the Avoidance because after the six months the Bishop may present by the lapse Therefore if the Patron of a Church vacant having or not having any Controversie depending with another touching the right of Presentation doubteth that before he makes his Presentation the Bishop may collate a Clerk of his own or admit a Clerk presented by another to the same Benefice unto
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
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