had not their originall in the primitive Church for St. Paul visiting all the Churches which he had planted in Asia and Europe demanded not any Proxies but laboured with his own hands for his maintenance that he might not be burdensome to the Churches Yet long after the Canon Law which declares that Proxies are due to the Bishops in their Visitations saith Inslit Juris Canon l. 2. ca. de Cens that it is agreeable to the doctrine of St. Paul Vt a quibus spiritâ—alia recipimus eisdem temporalia communicemus Secondly 't was noted that the same which we call Proxie or Procuracy is termed by the Canonists Procuratio because that in overy Visitation the persons visited procured necessary provision for the Visitors which provision at the first was in victuals viz. in Esculentis â—oâ—ulentis and that was do be received with moderation and temperance Distinct 35. c. Eccles Ne jejuniorum doctrinam rubentibus buccis praedicent as it is said in one of the Canons But afterwards when the pomp and excesse of the Visitors required so great Provisions as were grievous and intolerable to Churches and Religious Houses then every Church and Religious House was reasonably taxed and thereby Proxies reduced to a certain sum of money payable yearly in the nature of a Pension to the Ordinary who had power of visitation merojure as 't is said 10 Eliz. Dier 273. b. And this was aptly resemble to Socage in our Law of which littleton saith That in ancient time a great part of those Tenants which held of their Lords by Socage did come with their Sokes their Ploughs certain dayes in the year to plough and sow the Demesnes of the Lord and because that such workes were done for the livelyhood and sustenance of their Lords they were acquitted against their Lords of all other services Afterwards these services were changed into money by consent of the Lords desire of the Tenants that is into an annual rent And as the Tenants in Socage after the said change paid their rents yearly to the Lord although he had aliened his demesnes and had no land to be ploughed or sowed so the Churches Religious Houses after the Procurations of victuals were reduced to a certain sum paid them yearly to their Ordinary though he made no Visitation and so the Rule of Cessante causââ—cessnt effectus holds not in these Cases And to this purpose directly is Sir William Capels Case put in Luttrels Case in my Lord Coke his fourth Report where it was resolved That Land being holden by a Rent payable for the keeping of a Castle that though the Castle be demolished or decayed yet the rent must be paid For 't is there said That where the Tenant holdeth of the Lord to keep or repair the Castle of the Lord and afterward such service as Littleton saith in the Case of Socage was anciently by mutuall consent of Lord and Tenant changed into an annual rent although the said rent be pro warda Castri yet the Lord cannot have the keeping of the Castle back again when he will for after the composition and change made the keeping of the Castle is utterly gone And Pro imports no condition as in the Case of an Annuity granted pro consilio impendendo but a plain and perpetuall recompence and satisfaction By the self-same reason in our Case albeit that the Parsonages impropriate are now made layfee ad are come into the hands of lay Gentlemen which are not visitable and though that the Religious Houses are suppressed dissolved and overthrown as the Castle in Sir William Capels Case yet the said certain summes of money which came in lieu of Proxies and retain the name of Proxies and by ancient composition are become parcel of the certain and settled Revenues of the Bishop shall remain for ever and shall not be subject to exinguishment no more then Annuities Pensions or Portions of Tythes which are paid to this day out of many Abbies impropriate Rectories and the originall causes for which they were first granted or paid shall not be now examined or brought into question And at this day the King himself doth pay and allow Proxies out of all Impropriations which he hath in his possession and therefore in every Lease made by the King of an impropriate Rectory the Lessee doth covenant to discharge all Proxies Synodals Pensions c. And Sir Humphry Winch then chief Baron at the hearing of the said Cause said That before the dissolution of Monasteries where a Rectory was Appropriate to an Abbey immediately the Visitation ceased as to the Rectory for the Abbat was not visitable as Rector for his doctrine but as Abbat for his rule and order And yet without question the Ordinary had his Proxies out of all Parsonages appropriate to Abbies as well before the dissolution as after And for the Saving in the Act de 3â— Hen. 8. ca. 5. the same is no idle or Flattering Saving but reall and effectuall for it is agreed before that those Proxies were in being at the time of the making of the Act and not extinguished by the surrender of the Religious Houses for their Corporations were not dissolved untill the Religious persons had relinquished their houses and were dispersed And then such things as were in Esse at the time of the making of that Act might well be preserved saved by the Act though the things extinct before could not be revived by a Saving without express words of Grant and Restitution And this difference appeareth plainly in the Case of Kekewich 27 Hen. 8. Brook Parliaments 77. And in Sir John Molins Case in the sixth part of my Lord Cokes Reports 2. As to the second point it was resolved That Proxies in their originall nature being duties payable for visitation were grantable to the King and the King was capable of such grant especially when the said duties were converted to a summe of money certain in the nature of a Pension or Annuity for by the ancient Law of the Realm the King hath power to visit reform and correct all abuses and enormities in the Church and by the Statutes made in the time of Hen. 8. the Crown was only remitted and restored to its ancient jurisdiction which was usurped by the Bishop of Rome 33 Ed. 3. Fitz. Aid del Roy. 103. Reges sacro oleo uncti spiritualis jurisdictionis sunt capaces And Proxie is a profit of Jurisdiction 10 Hen. 7.18 Rex est mixta persona cum Sacerdote Also by the Common Law the King might have Tithes of which no meer lay person is capable 22. Ass p. 75. 21 H. 7.1 The King himself shall visit his Free Chappels and Hospitals 8. Ass p. 29. N. Br. 42. a. And Cassaneus in Catalogo Gloriae mundi part 5. consider 24. cites a text of the Canon Law viz. Quòd omnes Reges dicuntur Clerieâ— and another text that saith Quòd causa spiritualis committâ— potest Principt
the said Commandery and Rectory to Dr. Forth rendring rent without any reservation of Proxies And whether he shall be now charged with the said Proxies and with the arrerages of them incurred since the commencement of his Lease was the question and it was adjudged that he should be charged and three points were stirred and debated in the argument of that case 1. Whether the Proxies were utterly extinct by the suppression dissolution of the said Religious Houses of St. John of Jerusalem and Thomas-Court notwithstanding the Saving within the Act of Dissolution 2. Whether the Bishop can grant the Proxies to the King 3. Whether the Proxies were extinct in the hands of the King by the unity of possession For the first point it was objected by the Counsell of Sir Ambrose Forth that these Proxies were extinct by the suppression and dissolution of those Religious Houses for that the visitation of these Religious Houses was the sole cause of the payment of Proxies Et cessante causa cessat effectus For those Religious persons being deraigned and dispersed were not after that subject to Visitation and then when the Visitation ceased the Proxie being also an exhibition given to the Visitor for his travelling charges shall cease also For Procuratio as the Canonists define it est exhibitio sumptuum necessariorum facta praelatis qui dioeceses peragrando Ecclesias subjectas visitant Yet they agree that the Visitation ceaseth not immediately by the surrender or by the Act of Parliament which giveth those Religious Houses and their possessions to the Crown for by that their Corporations were not dissolved as 't is held in the Case of the Dean and Chapter of Norwich in the third part of the Lord Cokes Reports 15. Ass p. 8. 32 Hen. 8. Br. Corporations 78. But when those Religious persons were deraign'd and had relinquished their habit rule and order for which they were visitable then the Corporation was utterly dissolved and upon that the Visitation ceased And they resembled the Proxie due for Visitation to an Annuity pro consilio or pro servitio impendendo If the Counsel or Service be withdrawn the Annuity is determined So if a rent charge be granted for a high-way stop the way and the Rent-charge shall be also stopped 9 Edw. 4.19 15 Edw. 4.2 21 Ed. 3.7 45 Edw. 3.8 Dier 6. Hen. 8.2 6 Ed. 6.76 So also where a Corodie is granted for certain service to be done Omission of the service determines the Corodie 20 Edw. 4. fol. ultimo 'T was also said that this duty was not annuall but contingent and payable only at every visitation as Escuage for every journey Royall or as Aid for marrying of a Daughter or for making a Sonne a Knight In which last Cases if an Avowry be made for Aid 't is a good plea in barre thereof to say that the Avowant had not such sonne or Daughter alive at the time of the Aid levied N. N. Br. 82. g. And for the Saving they said that the same was a Flattering Saving which could not preserve the Proxies in being which the Law had extinguished as it was held 14 Eliz. Dier 313. That the Tenure of Obit or Chauntry Lands held of Subjects are extinct by the Act of 1 Ed. 6. notwithstanding the Saving in the said Act propter absurditatem So the Proxies in like manner shall also be extinguished proptor absavditatem For as it is absurd that the King should be subject to attendance in respect of Tenure so it is absurd that the King should be subject to Visitation or to any duty in respect thereof And of the same nature are many Savings put in Walsinghams Case Plow Com. 563. which are there called Flattering Savings For the second point it was objected That the Bishop could not grant the Proxies to the King for two Reasons The one deduced from the person of the King the other from the person of the Bishop First for the King admit that he were capable of such Spirituall Office as to be Visitor of Religious persons yet shall be not have Proxies in respect of Inconveniency and Indecency and also Impossibilâ—ty for it is not convenient or decent that these poor Religious persons should bear the charges of the King and it is also impossible for by the Canon Law Procuratio exhibendaâ—est secundùm qualitatem personae visitantis And the Majesty of the Kings person and the greatness of his Train is such that by praesumption of Law no private person can bear his necessary charges or make entertainment for him correspondent to the quality of his person And therefore 't is held 27 Henr. 8.10 b. That where Common sins number was granted to an Abbat and his Successors out of the Manor of Dale that after the Dissolution the King shall not have the Common sans number for it is there said that if the King have it he may surcharge the Land which the Law will not suffer As if a Villain purchase Common sans number the Lord shall not have it for the reason aforesaid for then the Ter-tenant may lose the profit of the Land For the Bishop though lie may grant his Temporall possessions with the assent of his Chapter or Clergie yet those duties that he hath by Prerogative of his Episcopall chair or as incident to his Spirituall function he cannot grant which according to the Rule of the Canon Law are of three kinds 1. Subisdium Cathedraticum which is a duty of Prerogative and Superiority 2. Quarta Episcopalis which is given to him for the Reparation of Churches 3. Procurationes for his visitation ut supra which is a perquisit or profit of his Spirituall Jurisdiction as Creation money given to a Duke or Earl for maintenance of his honour cannot be granted over 6 Hen. 8. Dier 2.2 For the third point they said that albeit the Proxie be a personall thing payable only in respect of the persons visitable yet admit that these Proxies are become reall and that the Commandery and Rectory be charged with the same Proxies then the unity of Possession extinguisheth them in the hands of the King As a Lordship Rent-charge Common and the like are extinguished by the purchase of the Tertenant if he hath equall estate in the Land and in the thing which chargeth the Land And to this purpose the Case of 2 H. 4.19 a. was put where 2 Prior had an Annuity out of a Parsonage by Prescription the Parsonage is appropriate to the Priory and the Annuity is extinguish'd for ever But on the other part it was answered by the Kings Councell and resolved by the Court. 1. THat the said Proxies were not extinguished by the Dissolution of the said Religious Houses but were well preserved and saved to the Bishop 2. That the Bishop had well granted them to the King 3. That the unitie of possession in the Kings hand did but suspend not extinguish the Proxies As to the first point it was observed First that Proxies
Grantee of the Annuity enter upon this land that entry neither suspends nor extinguisheth the Annuity for the land is not charged but the person in respect of the land for if the land were charged it should not be an Annuity only but a Rent-charge and should be recovered by Distress and Avowry which remedy the Law yields not for a meer Annuity Also upon assignment over of such Annuity Attornment should be necessary which needs not upon the assignment of an Annuity as is noted by Yaxley 21 H. 7.1 b. This point is made more clear 10 E. 4.10 a. An Abbat brings a Scire facias against a Vicar upon judgement in an Annuity being against the Vicars Predecessor The Defendant said that the Annuity issued out of the Manor of B and the Tythes Oblations and Obventions of the Vicaridge which Manor and Tythes make the Vicaridge and that the Plaintiff had made entry upon 43 acres parcel of the manor and had taken the Tythes Hereupon judgement was desired whether he ought to have execution And the whole Court held that it was no plea because that this recovery was upon a Writ of Annuity for in the Writ of Annuity the person only is charged and not the land and to say that he had made entry upon that land where by his suit it appeared that the rent issued not out of the land is no plea. And it is also there resolved that in an Annuity against an Abbat upon the title of Prescription it is no plea That the Plaintiff had entred into parcell of the possessions of the Abbey And in an Annuity against an Heir though he shall not be charged if he hold not by Descent yet 't is no plea to say that the Plaintiff had entred into the land descending But 21 H. 7. the case is more strong A Parson of a Church was charged with an Annuity to another Parson by Praescription The Parsonage out of which the Annuity was payable was appropriate to the Priory of Aliens which Priory being suppressed by Ed. 3. was granted by Parliament to H. 5. Afterward E. 4. grants the Parsonage Impropriate to the Dean of St. Stephens against whom a Writ of Annuity is brought by the Parson that had the Annuity by prescription And the Opinion of the Court was That the Annuity was not extinguished by the grant of the Parsonage to H. 5. by Act of Parliament though there be no Saving thereof and that this Annuity is not given inclusive with the Rectory for the Rectory was not charged with the Annuity but the person of the Rector only And albeit the payment of this Annuity might be suspended in the hands of the King yet when the King had passed a Grant of the Parsonage it should revive As to Tythes those are part of the profits of land and doe arise and renew from and out of land and yet they shall not be extinct by unity of Possession because they are originally due in a personall respect For the ignorance and weakness of Lay persons which needed instruction and confirmation in matter of Religion was the originall cause of the payment of Tythes And the Parson of a Church claims not Tythes in respect of land but in respect of the person of his Parishioner And that unity of possession doth not extinguish Tythes Vide 30 H. 8. Dier 43. 32 H. 8. Br. Dismes 17. And this Case of Dismes is a parallel of the Case of Proxies with which in all points it doth concurre For even as Instruction was the cause of payment of Tythes so Visitation which was alwaies accompanied with Instruction Littleton ca. de Frank almoigne 30. b. was the cause of Proxies and as â—yths are now due payable to Lay persons who have purchased impropriate Rectories though they give no Instruction So Proxies are due and payable to Ordinaries out of Impropriations and Religious Houses dissolved though their Visitation cease And as there can be no Praescription de non decimando as 't is commonly said in our Books So the Canon Law hath a Rule Quòd nulla est adversus Procurationem Praescriptio Instit. juris Canonicil 2. de Censibus And therefore Proxies which resemble Tythes in other points may well be compared to them in this point viz. that they shall not be subject to extinguishment by unity of Possession Thus have I imparted the whole Case of Proxies which haply came into my hands after I had penned for my own private use the foregoing Treatise which I the rather have set down at large to the end that any party grieved at this payment might by weighing all circumstances in the Case either receive information for his satisfaction or advantage if there it be to be found for his ease And having thus farre forth travelled in the business I leave both my self and my labour in this particular to the charitable censure of the discreet and courteous Reader For my part I hope there is no man suspects me partiall nor shall find me so this knowing age will soon discover such a fault and being found not suffer it to pass without touch of reprehension To be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 equally ballanced inclining neither to this or that hand but with my uttermost endeavour to press and facilitate the way towards Truth and Peace was the resolution I' brought with me when first I setled upon this argument I say Truth and Peace were before mine eyes as my principall objects which if I be not so happy as to find it will excuse that I have cordially sought To speak it in a word what I could gather up at the shoars and shallowes Littus enim legi not adventuring to launch into the Ocean I have faithfully to my power communicated concerning the point of Procurations And now what shall I more say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Concil Nicen. Can. 6. let not any private spirit by overmuch curiosity and study of Innovation causelesly goe about to move things well settled out of their ancient places nor without evident inconvenience discovered and judged by the eye of authority so much as think of the word Alteration but let antient Customes stand The wisdome of all times giving us to understand from the nature of man so pronely addicted to change of what evil consequence such attempt may fall out to be by the difficulty * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Fâ—â—dar Pyth. Od. 4. p. 112. that is found oftimes to follow in the resetling of things hastily and inconsiderately distrubed in their former station and place But I have done with this point and do now descend to enquire after another Ecclesiasticall payment namely Synodals De Synodalibus FOrasmuch as I have here taken upon me to treat of this Synodal due I think it not incongruous to say however little yet something of the Synod it self because at that time it was usually paid Now of Synods there are found sundry kinds Occumenical National Provincial and Diocesan Oecumenicall