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
est non potest tractu temponis convalescere and that in the Canon Law C. non sirmatur 18. de Regulis juris in 6º Dyn ibi Non firmatur tractu temporis quod de jure ab initio non subsistit there being no Custome of such praevaling authority ut aut Rationem vincat In l. 8. tit 32. C. Quae sit longa Consuetudo aut Legem as the Emperor well determines Now they that turn upon this hinge I mean that receive Procurations upon the ground of Custome must look that their receit or claim be both rationabilis legitimè praescripta And this appertaineth especially to such Archdeacons that receive Procurations in the L. Bishops Triennials and yet visit not whereof there are divers in this Kingdome Certainly the time was that Archdeacons had jus visitandi quolibet anno and did accordingly visit ea ratione receive Procurations Gloss Lind. in c. 1. in ver Visitation Provinc Constitut deâ—ssic Archid. l. 1. the Glosse upon the Provincial Constitutions intimates as much And in the Decretals de officio Archidiaconi we read that Pope Alexander the 3. wrote unto the Bishop of Coventry and to the Abbat of Chester and commands them to forbid the Archdeacon of Chester to visit the Churches within his Archdeaconry above once a year Ext. de offic Arch d. c. Mandamus Gloss ib. in v. soepius visitare Nisi talis causa emerserit propter quam ipsum oporteat praefatas Ecclesias soepius visitare Once a year and no more Nisi talis c. which implies that once a year at least he might surely in ages past he might doe so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But Time that turneth all things upside-down makes them seem to be what they were not hath altered the course of former dayes and brought it now to this issue namely that the Archdeacons not all but of many places must one year in three suffer the light of Archidiaconall authority to be eclipsed by the greater light of Episcopall power and content themselves with their Procurations only which yet the Clergy in many places think much to pay in respect not only of the many payments that lie heavy upon them wherein those of the meaner ranck are much to be pitied but especially because the Archdeacons demands at that time doing no service at all seem to them to be altogether unreasonable For the receit then of Procurations by Archdeacons in the years of Episcopall visitations when some of them visit not and to make the Custome by which they receive them firm and good They are first as before is said to shew sufficiency of cause and reason for this receit to make it rationabilis and next to set forth sufficiency of continuance to make it legitimè praescripta In explication whereof and application to our present business I intend to be very brief beginning with the former part or property of a good Custome namely Reasonableness But with serious protestation in the first place that I labour not by any argument to introduce a payment that hath not formerly been or to impose a burden heretofore not known or born for that were in effect to goe about 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to meddle with things that ought not by any private fancy to be moved or meddled withall that were little else then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Isocrates foibidden by the Oratour as perilous in a well settled State No but my endeavour shal be to offer such reasons as I can for payméts now in use in places where they are used and to stretch out the line of my discourse no further which if they prove to be of weight it may haply fall out that what formerly the Clergy to their great charge contradicting this payment have in contradictorio judicio been forced to pay and what at this day they pay though discontentedly as being conquered rather by Law then fully satisfied in point of reason they will with a willing mind 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as the Apostle 2 Cor. 8.12 readily chearfully and peaceably tender to their Visitor I o proceed then Procurations are in effect the Living of the Archdeacon valued to him in the Kings books for which he payeth yearly Tenths and Subsidies also as they fall out to be due And should a man yearly pay and not yearly receive No for the contrary to be the intent and meaning of the Kings and Queens of this Land may evidently be demonstrated Et ulterius de ampliore gratiâ nostra exoneravimus c. praefatnm de omnibus om nimodis Corrodiis Reddit feod annuitat pensionibus portionibus c. Praeterquam de de eadem Rectoria de exeun ' ac Archidiacono de successoâ—bus suis pro Procurationibus Synodalibus Annuatim solvend c. For that in such Grants as I have seen from the Crown of Impropriate Rectories those payments annuall payments of Procurations and so of Synodalls too are continued and left as a charge though many other burdens are taken away upon the Proprietaries Again whereas many other Ecclesiasticall Livings since the Certificate of their value into the Exchequer about the 26 of H. 8. are improved and made better Procurations are like the Talent hid in the napkin they continue without one farthing improvement Improvement doe I say Nay I am perswaded that few Archdeacons receive in Procurations to the summe of their valuation Poverty somtimes of the Incumbents death and such by blows cuts them short of many and makes them heartless to seek where little or nothing is to be found And yet are they charged with full payments of Tenths and Subsidies which are high upon fruits of this nature for valued by the penny as these Procurations are 5 l. out of 50 l. goeth out for Tenths alone And shall a man pay pay thus and not receive surely he that is necessitated to pay should necessarily receive and doubtless with good conscience he may that which occasioneth and is the sole reason of his pay yea the receit of Procurations in this case is so farre from being unconscionable in the Archdeacon though he visit not that the detaining of them seems to me to be unreasonable For in that the Archdeacons some of them I say some of them Ab. sic super 2â— 1â— i de officio Archid c. Vt Archidiaconus for all are not excluded visit not in the L. Bishops Triennialls the fault 's not theirs when not out of willfull omission but Canonicall submission they forbear to visit and strike sail to the commandement of their superiors And shall they for their obedience be deprived of their accustomed rights I leave that to the judgement of indifferency The Rule of Law and surely of Reason too is Ca. Imputari 41. de reg juris in 6o. that Imputare non debet ei per quem non stat si non faciat quod per eum
fuerat faciendum A man in the Law is not held to be faulty for omitting to doe what by his superiour he is not permitted to doe Nither is it of weight as I conceive that some urge That forasmuch as all Archdeaconries or the most part of them have their corps to wit some spirituall dignity or promotion appendant to them the Archdeacon that hath such Corps ought to live upon it in the years when he visits not and out of the profits arising thence poor and jejune perhaps to sustain and defray the whole charge of the Archdeaconry It is true that many yea most Archdeaconries have their Corps annexed to them but none that I know sine sarcina none but hath its peculiar payments and charge of Tenths Subsidies or Pensions or all together appendant even to the full as much or rather more then any other Ecclesiasticall Living of that nature And to charge them with more then their own burden which is found of times heavy enough would be ahard imposition to speak the least But especially if it should so happen that the Archdeacon had no other means as such there have been as well in this Kingdome which I could name as in forein parts Duaren l. 2. c. 4. de sacris Eccles ministeriis benesiciis as Duarenus doth remember then were it indeed intolerable and the rather in two respects especially First in respect of his Order for therein considered he is a person of speciall and remarkable Quality Seconly in respect of the Office that he sustains Ab. sic super secunda prim de offic Archipâ—e b. c. ut Archipresbyter which is Dignitas principalis post Episcopum in Ecclesia and upon which there is at least in former times there was so much dignity appendant in regard of the amplitude of power and jurisdiction that he had under the Bishop that Philip a fifth Son of Lewis the Gross King of France Paâ—lus Aemilius Tilius disdained not to take upon him the Office of an Archdeacon in Paris as Stories tell us And for such a one to want correspondent accommodations is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ext. de Office Archid. C ut Archidiaconâ—â— c. Ad baeâ— Onuphr Pantan Intâ—rpr vocum Ecclesiast in sine Chronâ—ci â—ui ad Platin. de vitis Ponus p. 61. a most unseemly absurd thing He is called Oculus Episcopi Diaconus circumlustrator perscrutator Vicartus post Episcopum ad quem in omnibus in Clero omnis cura pertinet with such like Titles of eminency Now should he be deprived of his just rights it would come to pass that his care would be so much to provide necessaries for himself at home that he should find little leasure circumlustrare to look into the field of the Church and to take care for others abroad But I know with whom I have to doe they are Scholars whose readiness to apprehend a reason and ingenuity to acknowledge a right I trust will prove such as that I shall not need to beat more ground for reasons which yet were there cause I could easily add to give them satisfaction in this point namely of the Reasonableness of the Archdeacons receipts of Procurations in the L. Bishops Triennials I descend therefore to the other property of a prevailing Custome namely Sufficiency of Continuance whereof in a word It hath been Vltra hominum memoriam and so equivalent to an Imperiall Priviledge or Constitution F. de aqua quotid costiva l. 3. §. Ductus aquae for it is an hundred years since the Certificate upon the Commission of Melius inquirendum concerning Ecclesiasticall Livings was returned into the Exchequer at what time it was certified what particular payments were yearly then made to the Archdeacons of the severall Diocesses in this Kingdome out of Ecclesiasticall Livings and thereupon their receipts became accordingly valued in the Kings Books and so stand unto this day And lest the Church by means of the suppression of Monasteries and other Religious Houses from whence Procurations and such like dues before that time had been usually paid to Ecclesiasticall Governors should receive detriment and be impeached in its former accustomed receipts rights when all the Lands and Possessions of those Religious Houses were setled in the Crown came into the Kings hand by Act of Parliament there was afterwards another Act of Parliament in the 34 of H. 8. by which a strict provision was made for the due payment of all such Ecclesiasticall rights as namely Pensions Portions Corrodies Indemnities Synodies and Proxies that were payable to and in the possession of any Ecclesiasticall person Ten years before the Dissolution no preceding visitation or other causall act or motive inducing thereunto more then that such due had accustomably been paid out of the said Religious Houses And thus have I runne through and given answer briefly to the third and last enquiry wherein I have endeavoured to prove First that there is Custome for the receipt of Procurations without visitation And secondly the same from the grounds of Reason and Continuance as to that point to be warrantable good And to make the matter clear I have thought good to subjoyn as most pertinent and satisfactory such in my opinion to the present business the subsequent Case of Proxies which devested and stript from its ancient Norman dresse and clad in plain English presents it self to the Readers view as followeth viz. Trin. 2 Jacobi in the Exchequer The Case of Proxies Between the KING and Sir Ambrose Forth Dr. of the Civil Law and one of the Masters of the Chancery The Case was this THe Bishop of Meth before the dissolution of Monasteries had a Proxie of 15 s. 4 d. payable yearly out of the Commandery of Kells in the County of Meth parcell of the possessions of the Hospital of St. John of Hierusalem in Ireland and another Proxie of 20 s. payable yearly out of the Impropriate Rectory of Trevet in the same County parcel of the possessions of the Abby of Thomas-Court in the County of Dublin In the 33 year of Hen. 8. the said Hospitall of St. John of Jerusalem and the said Abbey of Thomas-Court were surpessed and dissolved and the possessions of both the said Houses were vested in the actuall and real possession of the Crown by Act of Parliament But in the same Act there is an express Saving of Proxies to all Bishops and their successors After that the Bishop of Meth and his Clergie for that Bishoprick hath no Dean and Chapter did by Deed enrolled dated 16. Martu 36 Hen. 8. grant the Proxies aforesaid inter alia to K. Henry the eighth his Heirs and Successors the said King being at the time of the Grant and after in actuall possession of the said Commandery and Rectory out of which the said Proxies were payable Afterwards Q. Eliz. by her Letters Patents dated 1 Novembris in the 33 year of her reign did demise
26 H. 8. Extract è Record Primitiarum per annum ultra lx s. solut pro feud Raphael Rawlins Collect. dict proum Cenag cum Pentecostal 64 l. 10 s. x 2 inde 6 l. 9 s. Here is plainly set down the true worth and full value of the Archdeaconry of Gl. in Procurations Synodals and Pentecostals to wit 64 l. 10 s. And for prevention of future cavil as if the present opposition had been so many years agoe foreseen it is expressed per annum too for that 's the matter of grievance so much yearly worth And what would we more to make the matter plain He doth in my opinion little other then Nodum in scirpo quaerere and consequently beat the aire that useth means to evade a payment so apparently clear and evident Add to all this continual perception and collection of these duties by Archdeacons even from the time of the valuation of them in Anno 26 H. 8. unto this present and tenths as before I have said paid out of them yearly to the Crown for all that time I suppose there is none alive that can contradict it et quod non disprobatur praesumitur such Books and Acquittances as I have seen and I have seen some that are ancient all testifying the same Besides I never heard of any that stood out a suit against this payment that upon a judiciall hearing or trial ever prevailed in the principal cause and point of right but was alwayes overthrown in the litigation and comepelled to pay charges And as for the Act of Parliament Thus much I find conducing to my purpose in Anno 34 Hen. 8. c. 16. IF any person or persons being Farmer or Occupier of any Manors Rastal Abridgment Pensions Lands Tenements Parsonages Benefices or other Hereditaments of any of the said late Monasteries or Ecclesiasticall houses or places or belonging to them or any of them by the Kings Highness gift grant sale exchange or otherwise out of which premisses any such Pensions Portions Corrodies Indemnities Synodies or Proxies or any other profits have been heretofore lawfully going out answered or paid to any of the Archbishops Bishops Archdeacons and other Ecclesiasticall persons above-said doe at any time after the first day of April next comming wilfully deny the payment thereof at the dayes of payment heretofore accustomed of any of the said Pensions Portions Corrodies Indemnities Synodies Proxies or any other profits whereof the said Archbishops Bishops Archdeacons or other Ecclesiastical persons were in possession at or within ten years next before the time of the Dissolution of any such Monastery or other Ecclesiastical houses or places that then it shall be lawfull for the same Archbishops Bishops Archdeacons or other Ecclesiasticall persons aforesaid being so denied to be satisfied and paid thereof and having right to the same thing in demand to make such process as well against every such person and persons as shall so deny payment of the same Pensions Portions Corodies Proxies Indemnities Synodies or any other profits which of right ought to be paid as is aforesaid as against the Church or Churches charged with the same as heretofore they have lawfully done and as by and according to the Laws and Statutes of this Realm they may now lawfully doe for the true payment and recovery thereof And if the party Defendant be lawfully convict in any such suit cause or matter according to the Ecclesiasticall Lawes then the party Plaintiffe shall have and recover against the party Defendant the thing in demand and the value thereof in dammages with his costs for his Suit c. By this Act it is plain that all such payments as issued out of Parsonages Benefices or other Hereditaments of the said late Monasteries to any Archbishop Bishop Archdeacon c. at or within ten years next before the time of the Dissolution should be still continued and duly paid as before Now the Procurations or Proxies were yearly due The Record hath its ground from an Act of Parliament of 26 H. 8. The suppression of Abbies follows in 31 ejusdem Regis and paid within lesse then six years before the Dissolution appeareth plainly by the preceding Record Therefore yet to be paid according to the fore-recited Act. But perhaps it will be objected Why was there a Provision made by Act of Parliament for payment of these duties out of Parsonages c. belonging unto Monasteries and not out of others in like manner in the then possession of spirituall Incumbents I answer It seems to me that this Proviso was made by the clemency of the King and the indulgency of the Parliament to secure the rights of the Church to the true owners thereof that haply might be passed away and in hazard to be utterly lost by the Kings Grant to Lay-persons And this to be the ground and reason of that Provision is clearly demonstrated in the latter part of the same Act of 34. Hen. 8. where there is a course prescribed how such persons in such Cases should have remedy and in what Court they should commence suit for the recovery of their subtracted rights viz. in the Court of Augmentation of the Revenue of the Kings Crown and not elsewhere These be the words of the Act whereunto I referre the Reader Now there needed no such Act or caution as before is mentioned no such Proviso to secure the Visitors duties from the invasion of spiritual Incumbents of whose Promotions or Benefices the King made no sale nor medled withal but left them entire reserving to himself upon the return of the Certificate of their true value only an yearly Tenth but with an exact deduction first of all such summe or summes of money Procurations or whatever else he then found them yearly charged withall which being so allowed to the spirituall Incumbent I conceive that those that the Lawes and Statutes of this Realm have qualified and made capable of such receits and such are Archbishops Bishops Archdeacons c. may lawfully at their respective accustomed times according to the fore-recited Act require and so ought to receive them till authority shall alter the course But to this point I hope there is enough said already To draw now towards a conclusion These Reasons that I have here urged together with those formerly mentioned make me to think that Procurations are not payable as my friend thinks Ratione lummodo visitationis no but sometimes Custome hath its place as all Canonists that I have read upon the point doe unanimously acknowledge yea those or suck like reasons moved a very learned Civilian Dr. Cosens sometime Dean of the Arches writing of the quality of rights Ecclesiastical and how they became due amongst other things saith D Cosen Polit. Ecclesiae Angl. â—ab 8. Pensiones indemnitatis Procurationes ratione visitationis PLERUNQ praestandae He doth not say as my friend saith that they are only so due but Plerunque so Now what Plerunque signifies is a little to be enquired after That it comes near to the signification which corresponds to his fancy no Grammarian I am sure will allow Plerunque is never found to carry the sense that solummodò doth but that it yieldeth the same sense and signification that interdum doth Civilians well know Vlpian l. Falsus ff de Furtâ—s and I acknowledge And in so doing I render him but small advantage and my self as little prejudice I hold my assertion still There is jus consuetudinarium a right of Custome by which Procurations are sometimes and ought as I suppose so to be And the sole reason of that payment dependeth not upon the Act of Visitation only alwaies as my friend would have it I have done with this business God grant that what it aims at it may effect Peace peace I say either by submitting to Truth or convincing by Truth Amen Amen 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LEt the Reader be pleased to take notice as fit to be known that the aforegoing Discourse and Appendix were written in the time of Dr. Robinson late Archdeacon of Gloucester deceased and not altered in this Impression from what they then were examined and prepared in Order to the Presse except the mistakes in Printing of which the most material I have here noted others of mispointing and misaccenting with some other literal escapes I pray the courteous Reader to make use of his Pen to amend or his Patience to forbear what 's amiss Page 7. line 4. read came Pa. 9. l. 11. r. us Pa. 10. l. 21. r. Lions Pa. 19. l. 3. 1. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pa. 23. l. 16. r. Praelatus Pa. 24. l. 16. r payment Pa. 26. l. 8. r. subsistit Pa. 26. l. 15. r. praescripta Pa. 31. l. 13. r. is l. 24. r. imputari Pa. 85. l. 21. r. Parochial and so elsewhere Pa. 90. l. 6. r. rise Pa. 126. l 6. r. Nathaniel Pa 128. l. 15. r. this Pa. 132. l. 24 r. personaliter Pa. 136. l. 6. r. Canon