and only Six in the other In the First of these Marriage was prohibited the time of Lent and three weeks before the Feast of St. John the Baptist and during the time between Advent and Epiphany At Sidon in the Twentieth year of the Emperour Anastasius a National Council of 80 Bishops was Assembled by the procurement of Xenaeas Bishop of Hierapolis for undoing the Council of Chalcedon which as far as in them lay they did accordingly At Aurelia that is Orleance in France in the 22 d year of Anastasius and under the Reign of Clodoveus King of France were convened 32 Bishops on purpose to settle some Order in Ecclesiastical Discipline which by reason of the irruption of Barbarous people into the Countrey of France had been brought into great disorder At Gerunda and Caesaraugusta in Spain were Two Councils under Theodoricus King of Gothes then Reigning in Spain In the former of these were only Seven Bishops convened who made some Constitutions chiefly about Baptism In the latter were Eleven Bishops and they in opposition to Supersitition and the Manichaean Hereticks prohibited Fasting on the Lords day At Rome in the Sixth Century by the Mandate of Theodoricus King of Gothes Reigning in Italy a Council was Assembled by Hormisda Bishop of Rome wherein the Error of Eutyches is damned de novo and Ambassadours sent to the Emperour Anastasius and to the Bishop of Constantinople to divert them from that Error At Constantinople in the same Century under the Emperour Justinus was another Council convened wherein many great Accusations were exhibited against Severus Bishop of Antioch who was then condemned of Heresie and afterwards Banished by the Emperour At Toledo in the same Century was a Second Council assembled partly for renewing Ancient Constitutions and partly for making New in order to Ecclesiastical Discipline By the first Canon of this Second Council of Toledo Marriage was tolerated to such of the Clergy as on their initiation to that Function protested that they had not the gift of Continency At Constantinople in the year 532. under Justinian was another Council consisting of One hundred Sixty five Bishops Menes being President or rather his Successor Eutychius Patriarch of Constantinople but Pope Vigilius who came to Constantinople to Summon the Emperour yet would not himself be present at the Council lest a seeming yielding to Eutychius might be prejudicial to his Supremacy The Emperour endeavoured to reconcile the Eutychians and the Orthodox for the Publick Tranquillity and therefore would have revoked the Articles concerning the condemning of Theodorus of Mopsuesta and of Theodoret against Cyrillus that was Anathematized But the Western Churches with Pope Vigilius constantly opposed it and confirming not only the Decrees Anathematizing those Hereticks with their Heresies of former Councils but also of Chalcedon The Errors of Origen also expunged which either denied the Divinity of Christ or the Resurrection of the Body or affirmed the Restitution of Reprohates and Devils Consult concering this Council Zonar in vit Justinian If this be that Council which some report to have been at Constantinople under the Emperour Justinian in the year 551. there appears above Twenty years difference in computation of Time This Council is said to have been occasioned chiefly for pacifying the Controversie between Eustochius Bishop of Jerusalem and Theodorus Ascidas Bishop of Caesarea Cappadocia touching Origens Books and Tenets as also for the determination of other Contentious Disputations In this Council a Question was moved Whether men that were dead might lawfully be Cursed and Excommunicated To which it was Answered That as Jâ—sias not only punished Idolatrous Priests while they were alive but also opened the Graves of them that were dead to dishonour them after their death who had dishonoured God in their life time Even so the Memorials of men might be accursed after their death who had disturbed the Church of Christ in their life At Orleans under Childebertus King of France were frequent Meetings and Assemblies of Bishops the 2 3 4 5 Councils whereby many Constitutions were made prohibiting Marriage to Priests and in the Fourth Canon of the Second Council Simony was damned At Overnie in France under Theodobertus King of France the Bishops who were present at the Councils of Orleans did assemble and Ordained That no man should presume to the Office of a Bishop by Favour but by Merit At Tours under Aribertus King of France a Council was held wherein Provision was made against such Poor as wandered out of their Parishes In this Council several Constitutions also were made relating to Bishops and the other Clergy in reference to Marriage At Paris a Council was held wherein order was taken concerning the Admission of Bishops to their Offices and that not to be by favour but with the consent of the Clergy and People At Toledo Assembled a Council of 62 Bishops where Recaredus King of Spain and the whole Nation of the West-Gothes in Spain renounced the Arrian heresie At Constantinople under the Reign of Maruitius a Council was held for trying the Cause of Gregorius Bishop of Antioch accused of Incest but declared to be Innocent and his Accuser scourged with Rods and Banished At Matiscon about the time of Pelagius the Second a Council was held wherein Command was given That none of the Clergy should Cite another having a Spiritual Office before a Secular Judge And that she who is the Wife of a man that becomes a Bishop or a Presbyter should after such Dignity become his Sister and he be changed into a Brother At Matiscon another Council was Convened under Gunthranns King of France in the 24 th year of his Reign wherein it was Ordained That Children should be Baptized at Easter and Whitsontide and that Secular men should reverence the Clergy At Rome in the year 595 and in the Thirteenth year of the Reign of the Emperour Mauritius was a Council assembled of 24 Bishops and 34 Presbyters wherein the first Four General Councils were confirmed and that for Ordination of men in Spiritual no Reward should be given or taken Before the Conclusion of this Sixth Century and precedent to the Councils last mentioned there were some other Councils of less moment such as Concilium Gradense Braccarense Lataranense Lugdunense Pictaviense Metense which being for the most part employed chiefly in damning Old Heresies and in contentious Disputations are here omitted At Rome in the year 607. under Phocas the Emperour a Council of 72 Bishops 30 Presbyters and 3 Deacons was Assembled In this Council the priviledge of Supremacy given by Phocas to the Roman Church was published And in the Eighth that is the last year of Phocas Boniface the Fourth assembled another Council at Rome wherein he gave power to the Monks to Preach Administer Sacraments hear Confessions to Bind and Loose and associate them in equal Authority with the
vacancy of a Bishoprick the Dean and Chapter by virtue of his Majesties License under the Great Seal of England hath proceeded to the Election of a new Bishop in pursuance of and according to his Majesties Letters Missive on that behalf and Certificate thereof made unto the Kings Majesty under their Common Seal then follows the Confirmation Consecration and Investiture by the Archbishop or Metropolitan of that Province wherein such Bishoprick was void the said Election having upon such elected Bishops Oath of Fealty to the Kings Majesty been first signified to the Archbishop by the King under his Great Seal whereby the said Archbishop is required to Confirm the said Election and to Consecrate and Invest the person Elected And now he is compleat Bishop as well unto Temporalties as Spiritualties yet after his Confirmation and before his Consecration the King may if he please ex gratia grant him the Temporalties But after his Consecration Investiture and Instalment he is qualified to sue for his Temporalties out of the Kings hands by the Writ de Restitutione Temporalium And yet it seems the Temporalties are not de jure to be delivered to him until the Metropolitan hath certified the time of his Consecration although the Freehold thereof be in him by his very Consecration But if during the Vacation of Archbishopricks or Bishopricks and while their Temporalties are in the Kings hands the Freehold-Tenants of Archbishops or Bishops happen to be attainted of Felony the King by his Prerogative hath the Escheats of such Freeholders-Lands to dispose thereof at his pleasure saving to such Prelates the Service that is thereto due and accustomed Before the Conquest the Principality of Wales was held of the King of England and by the Rebellion and forfeiture of the Prince the Principality came to the King of England whereby the Bishopricks were annexed to the Crown and the King grants them their Temporalties 10 H. 4. 6. 7. The manner of making a Bishop is fully described in Evans and Kiffin's Case against Askwith wherein it was agreed That when a Bishop dies or is Translated the Dean and Chapter certifie the King thereof in Chancery and pray leave of the King to make Election Then the King gives his Congé d'Esâ—ire whereupon they make their Election and first certifie the same to the party Elect and have his consent Then they certifie it to the King in Chanceâ—y also they certifie it to the Archbishop and then the King by his Letters Patents gives his Royal Assent and commands the Archbishop to Confirm and Consecrate him and to do all other things necessary thereunto whereupon the Archbishop examines the Election and the Ability of the party and thereupon confirms the Election and after Consecrates him according to the usage upon a New Creation And upon a Translation all the said Ceremonies are observed saving the Consecration which is not in that case requisite for that he was Consecrated before 8. Bishopricks were Donatives by the King till the time of W. Rufus and so until the time of King John Read for that the History of Eadmerus Vid. Case Evans vers Ascouth in â—in Caâ— Noy 's Rep. It hath been generally held That before the Conquest and after till the time of King John Bishops were Invested by the King per Baculum Annulum but King John by his Charter granted That there should be a Canonical Election with Three Restrictions 1. That leave be first asked of the King 2. His Assent afterwards 3. That he shall have the Temporalties during the Vacation of the Bishoprick whereof mention is made in the Stat. of 25 Ed. 3. de Provisoribus and which is confirmed by the Stat. of 13 R. 2. c. 2. Also the Law in general is positive therein That in the making of all Bishops it shall be by Election and the Kings Assent and by the 25 H. 8. the Statute for Consecration of Bishops makes it more certain And if the Pope after the said Charter did use to make any Translation upon a Postulation without Election and Assent of the King it was but an Usurpation and contrary to the Law and restrained by 16 R. 2. and 9 H. 4. 8. And after the 25 H. 8. it was never used to have a Bishop by Postulation or any Translation of him but by Election as the said Statute prescribes And the form of making a Bishop at this day is after the same manner as aforesaid and according to the said Statute 9. The Interest and Authority which a Bishop Elect hath is That he is Episcopus Nominis non Ordinis neque Jurisdictionis But by his Confirmation he hath Potestatem Jurisdictionis as to Excommunicate and Certifie the same 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease But after Election and Confirmation he hath Potestatem Ordinationis for then he may Consecrate confer Orders c. For a Bishop hath Three Powers 1. Ordinis which he hath by Consecration whereby he may take the Resignation of a Church confer Orders consecrate Churches And this doth not appertain to him quatenus Bishop of this or that place but is universal over the whole World So the Archbishop of Spalato when he was here conferr'd Orders 2. Jurisdictionis which is not Universal but limited to a place and confin'd to his See This power he hath upon his Confirmation 3. Administratio rei familiaris as the Government of his Revenue and this also he hath upon his Confirmation The Bishop acts either by his Episcopal Order or by his Episcopal Jurisdiction By the former he Ordains Deacons and Priests Dedicates or Consecrates Churches Chappels and Churchyards administers Confirmation c. By the latter he acts as an Ecclesiastical Judge in matters Spiritual by his Power either Ordinary or Delegated 10. An. 1430. Temp. Reg. H. 6. Hen. Chicheley Archiepisc Cant. in Synodo Constitutum est Ne quis Jurisdictionem Ecclesiasticam exerceret nisi Juris Civilis aut Canonici gradum aliquem ab Oxoniâ—nsi vel Cantabrigiensi Academia accepisset Ant. Brit. fo 284. nu 40. The power of the Bishop and Archbishop is derived from the Crown as was held in Walkers Case against Lamb where it was also held That the Grant of a Commissary or Official to one was good notwithstanding he were a Lay man and not a Doctor of Law but only a Batchelour of Law for the Court then said That the Jurisdiction of the Bishop and Archdeacon is derived from the Crown by usage and prescription and that in it self as it is coercive to punish Crimes or to determine Matrimonial Causes and Probate of Testaments and granting of Administrations being Civil Causes are derived from the Crown and not incident de mero jure to the Bishop which appears by Henslows Case par 9. Cawdry's Case par 5. 1 Ed. 6. c. 2. the Stat. of 37 H. 8. and divers other Authorities and the Statute of 37 H. 8. c.
external Priesthood in which Power is given by Divine Institution to Consecrate the Eucharist c. In which Decree the Synod doth also condemn those who say all Christians are Priests or have equal Spiritual power which is nothing but to confound the Ecclesiastical Hierarchy which is in an Order as an Army of Souldiers To which Hierarchical Order do belong especially Bishops who are Superiour to Priests Therefore one of the said Anathematisms did reach those who say that there is not an Hierarchy instituted in the Catholick Church by Divine Ordination consisting of Bishops Priests and Ministers The Historian of the aforesaid Council of Trent tells us That the Sixth of the said Eight Anathematisms was much noted in Germany in which an Article of Faith was made of Hierarchy which word and signification thereof says he is Alien not to say contrary to the Holy Scriptures and though it was somewhat Anciently invented yet the Author is not known and in case he were yet says he he is an Hyperbolical Writer not imitated in the use of that word by any of the Ancients and following the style of the Primitive Church it ought says he to be named not Hierarchy but Hierodiaconia or Hierodoulia But Thomas Passius a Canon of Valentia said in that Council That all doubt made of the Ecclesiastical Hierarchy did proceed from gross ignorance of Antiquity it being a thing Notorious that in the Church the People have alway been governed by the Clergy and in the Clergy the Inferiours by the Superiours until all be reduced unto one Universal Rector which is the Pope of Rome and that it was plain that the Hierarchy consisteth in the Ecclesiastical Orders which is nothing but an holy Order of Superiours and Inferiours But Francis Forrier a Dominican of Portugal at the same time said That Hierarchy consisteth in Jurisdiction and the Council of Nice placeth it in that when it speaketh of the Bishop of Rome Alexandria and Antioch and therefore the handling of Hierarchy not to be joyned with that of Order Others were of a Third opinion viz. That Hierarchy was a mixture of both viz. of Order and Jurisdiction also Thus was that Learned Council divided in this high point of Hierarchy that though they all agreed the thing yet they could not agree wherein to fix it whether in Order or in Jurisdiction or in both Notwithstanding it is generally agreed That the Hierarchy of the Catholick Church is proved by the Testimony of all Antiquity and by the continual use of the Church and that it consisteth of Prelates and Ministers who are Ordained by Bishops in whom resides the power of Consecration which may be a sufficient warrant for this digression Which Consecration as it refers to Persons is done per impositionem manuum except as to Virgins for they also by the Pontifical Law are Consecrable Creatures though they be Foolish Virgins yea though they be Polluted Virgins provided it be not per spontaneam voluntariam pollutionem and there be but putativa Virginitas in the case and shall have not only Laureolam Virginitatis but also Velum Consecrationis as they call it Cajetan in Sum. V. Virgin consecrat Less de Just. Jur. lib. 4. c. 2. Dub. 16. alii DD. But where the Consecration refers to Things as Churches Chappels Bells and other things of the like sound there it is done per preces together with other Consecration-ceremonies the Episcopal Order therein concurring so likewise the Consecration of Virgins is per preces together with other Ceremonies used in the Consecration of Virgins Cujus Signum est quod in Pontificali Romano ubi de hac Consecratione agitur non dicatur roganda de aliqua contaminatione sed de vita conscientia carnis integritate ut notat Cajetanus Less ubi sup That which is next in view is some prospect of Deans and Chapters there were it seems in former times certain Deans who usurped an Authority beyond their Dignity or Function and took upon them to exercise Episcopal Jurisdiction These were condemn'd in a Council at Lateran under Pope Alexander by the fifth Canon of that Council in these words viz. Quoniam quidam in quibusdam partibus sub pretio statuuntur qui Decani vocantur pro certa pecuniae quantitate Episcopalem Jurisdictionem exercent praesenti Decreto statuimus ut qui de caetero id praesumpserit Officio suo privetur Episcopus conferendi hoc officium potestatem amittat Chron. Gervas de Temp. H. 2. Anciently likewise there were certain Deans which were called Decani Christianitatis one of which kind appears in an Ancient Record nigh Four hundred years since relating to the Priviledges of the Priory of St. Austins wherein the words to this present purpose sic se habent viz. Super Privilegiis Innocentii Papae 4. hic superius ad mandatum conservatorum ut praetactum est publicatis Thomas Prior Ecclesiae Christi Cant. Guydo Prior S. Gregorii Thomas Decanus Christianitatis ejusdem Civitatis eadem Privilegia inspexisse ad certitudinem futurorum testati sunt Chron W. Thorn de Temp. Ed. 1. An. 1293. Heretofore also Priors have been called Deans so we find Ceolnothus or Chelnothus in the time of King Ethelred and his Brother Alured Dean of Canterbury to have been called Postea Ceolnothus Cantuariensis Ecclesiae Decanus c. ubi cum Decanus esset quem nos Priorem vocamus non modicum videre solebat Conventum And again Egelnothum alias Ceolnothum ejusdem Ecclesiae Christi Decanum vel Praepositum suum Decanum vocabant quem nos post adventum Lanfranci Priorem appellamus Gervas Act. Pontif. Cant. And where we meet with the word Decania as in the History of Ranulphus Bishop of Durham in the Conquerors time written by Simeon the Monk Deconatus is thereby intended it being the Ecclesiastical Dignity of him qui in Majori Ecclesia denis ad minus Canonicis sive Praebendariis ut vocant sub Episcopo praeest but the DECANVS CHRISTIANITATIS aforesaid so called per Antiquiores Anglos is secundum recentiores DECANVS RVRALIS quem Exteri ARCHIPRESBYTERVM VICANVM vocant De quo de Vrbano vid. Duaren de Sacr. Eccl. minist benef lib. 1. cap. 8. A probable conjecture why anciently he might be called Decanus Christianitatis we may ut mihi videtur have from Mr. Selden in Notis ad EADMERUM pag. 208. Christianitas says he ea quae ad Christianitatem pertinent passim apud Eadmerum atque alios illius aevi Scriptores functionem Episcopalem atque Fori sacri actionem administrationem seu Officium Episcopale ut usitatius appellatur denotant Hinc apud nos Fora sacra quibus jure nempe communi subnixis aut Episcopi praesunt aut ii qui eo nomine Episcopos utpote quos provocare licet suscipiunt Curiae Christianitatis etiamnum vocitantur Glossar Hist Angl. Antiq. ver Christianitas vid. plura in
time these Commendataries under pretence of Necessity made use of the Fruits and to enjoy them the longer sought means to hinder the Provision for remdy whereof order was taken that the Commenda should not continue longer than Six months But the Popes by the plenitude of their Power did exceed these Limits and Commended for a longer time and at last for the life of the Commendatary giving him power to use the Fruits When any Ecclesiastical Benefices happen to be void the Law provides that they shall be seasonably supplied with meet Incumbents and will not by any means admit any long Vacancy and hath therefore set a competent time within which he that hath the original right of Presentation in him shall discharge his duty therein or the Lapse shall incurr to him or them to whom by Law ab Inferiori ad Superiorem it gradually devolves This matter of Lapse in the intent and purpose thereof though not by that denomination is very Ancient By the Ninth Canon of the Council of Lateran under Pope Alexander it is provided That Cum Praebendas Ecclesias seu quaelibet officia in aliqua Ecclesia vacare contigerit vel si etiam modo vacant non diu maneant in suspenso sed in Sex menses personis quae digne administrare valeant conferantur Si autem Episcopus ubi ad eum spectaverit conferre distulerit per Capitulum ordinetur Quod si ad Capitulum Electio pertinuerit infra praescriptum terminum hoc non fecerit Episcopus exequatur Aut si forte omnes neglexerint Metropolitanus de ipsis absque illorum contradictione disponat vid. Chron. Gervasii de Temp. H. 2. And by the Eighth Canon or Constitution of the Council at Rome in the year 1180 under Pope Alexander the Third it was Ordained That no Ecclesiastical Office should be promised to any man before it became vacant by the decease of the Possessor For says the Canon it is an unrighteous thing to put any man in expectation of another mans Living whereby he may wish his Brothers death And when any place shall happen to be vacant let it be planted again within Six months or else he who hath the Right of Plantation shall lose it at that time and the Chapter or Metropolitan Bishop shall have power to provide the vacant place According to the Canon Law the Lay-Patron hath but Four months to present to a Benefice but an Ecclesiastical Patron hath Six Patronatus vero Laicus intra quatuor menses praesentare potest Ecclesiasticus autem Patronus intra Sex menses c. uno de jure Patron in 6. But the Pope is not limited to any time so that he may Collate to such Ecclesiastical vacant Benefice at what time he pleases Papae vero non est aliquod tempus praefixum cum non habet Superiorem qui possit ejus negligentiam supplere c. aliorum 9. q. 3. nisi in c. Statutum de Praeb in 6. Although regularly all inferiour Dignities Ecclesiastical and Benefices ought to be bestowed within Six months of their Vacancy according to the Rule of the Canon Law c. cum nostris c. dilectus c. postulastis Yet the greater Dignities are by that Law to be conferr'd within Three months Majores vero Dignitates ut Episcopales debent intra Tres menses tribui c. ne pro defectu de Elect. c. postquam 50. Dist. Although in strictness and propriety of Speech Presentation referrs to the Lay-Patron and Collation to the Bishop yet in the Canon Law the words Collation and Collator are frequently used in a sense promiscuously relating to them both Therefore you have it in one place said That Praesentatio à Fundatore fieri solet Episcopo vel alteri Collatori Episcopus instituit Praesentatum à Patrono Rub. per tot tit de Instit c. quod autem de jur Patron In another place it is said That Praesentatio Large dicitur Collatio Rebuff in Prax. Benefic Reg. de infirm Benefic resignant gloss 14. nu 6. post Barba in c. Abbatem de Rescript col pen. Yea and sometimes Collation is generally taken also for Institution per tex in ca. uno ut Ecclesiast Benefic sine diminut conferant Although a Lay-man doth found build or endow a Church yet the Canon Law allowes him not the Priviledge of Jus Patronatus or Jus Praesentandi otherwise than ex gratia for the Canonists do hold That de rigore juris non potest Laicus Ecclesiastica tractare negotia c. 2. de Judic only say they the Popes to encourage them in the founding building or endowing of Churches have reserved that Priviledge for them and confirmed it by a Law c. Decernimus 16. q. 7. per tot tit de jur Patronat As the Jus Patronatus so Presentation also by the Canon Law is twofold the one by an Ecclesiastical Patron the other by a Lay Patron This distinction is best known only to the Canon Law and although it may be so in Presentation yet it is not properly applicable to Collation The Ecclesiastical Patron as aforesaid hath by that Law Six months to be computed from the day of his having Notice of the Vacancy to Present c. unic de jur Patronat 6. Do. de Rota Decis 568. tit de Sent. re jud Decis 31. 845. tit de filiis Presb. decis 4. By the Ecclesiastical Patron is meant or intended that person who hath the Jus Patronatus in him ratione Ecclesiae seu Beneficii quod possidet c. dilectus de Offic. Leg. c. cum dilectus de jure Patro. But the Lay Patron who hath the Jus Patronatus ratione sui patrimonii hath only Four months as aforesaid ad Praesentandum d. c. uno yet in his Presentation he may variare but that may not be more than semel tantum c. quod autem de jure Patr. and this Cumulative non autem ut à primo recedere omnino possit c. cum autem ubi Pan. ibid. So likewise as to Collation that also is twofold by the same Law viz. Necessary and Voluntary a distinction of little use with us Necessary which the Collator is bound to make as to one who hath a Mandate from the Superiour Power for the same c. tibi c. duobus de Resor lib. 6. The Voluntary Collation being that which is free in him who hath power to make the same The Canon positively requires that Examination shall ever precede Ordination Admission Institution and Induction and although this be incumbent on the Bishop or Ordinary when it is in order to a Benefice before the Six months expire yet no obligation lies upon him to effect it so soon as the party offers his submission to an Examination specially if at the same time the Ordinary be circa curam Pastoralem This Examination referrs to the due qualification of the person to be Ordained or Beneficed as to his Ability and Conversation After this Examination
tradehant The Seventh was at Nice under Constantine and his Mother Irene where 367 Bishops were assembled against the Adversaries of Images whom they subjected to their Anathema 2 Of Particular Synods one was held in the Temple of the Apostles in Constantinople under the Patriarch Photius which was called the First and Second Another under Leo and Constantine in the most Famous Temple Sanctae Dei Sapientiae or Sanctae Sophiae which confirmed the Seventh Synod Another at Ancyra more ancient than the first Universal Synod Another at Caesarea more ancient than that at Ancyra Another at Gangra after the Nicene against Eustachius who despised Marriage and taught things not consonant to Ecclesiastical Tradition Another at Antioch a City in Syria where in truth were two Synods the one under Aurelianus against Paulus Samosatenus who said that Christ was meer Man the other under Constantius Son to Constantine the Great Another at Laodicea scituate in Phrygia Pacatiana Another at Sardica that when Constantius embraced the foresaid Sect his Brother Constans Emperour of Old Rome by his Letters threatning him with a War if he would not desist from perverting the Church his Answer was That he sought no other Doctrine than what was most agreeable to the Catholick Faith whereupon by their and the Bishop of Romes appointment 341 Bishops were Conven'd in a Synod which having established the power and authority of the Nicene Synod did constitute divers Canons for the Church Another at Carthage under Theodosius where 217 Bishops were assembled and with them the Popes Vicegerents this Carthage was part of Charchedon and that a Province of Africa 3 The Canons of the Fathers are taken according to the Roman computation out of the Epistles partly of Dionysius Alexandrinus partly of Petrus Alexandrinus partly of the Wonder-working Gregorius partly also out of the Epistles of Bazil or Basilius the Great partly out of the Epistle of Gregory or Gregorius Nyssenus to the B. of Melita partly out of the Responses of Timotheus Alexandrinus partly out of the Responses of the Constantinopolitan Synod to certain Monks Nicholaus the Patriarch being President partly out of the Epistles of Cyril or Cyrillus and partly out of the Epistles of Nicephorus the Patriach 4 The Canons of the Holy Apostles a book falsly ascribed to the Apostles are in number Eighty Five according to a modest Computation if you have any Faith to spare at least enough to believe the Church of Rome in that as in other Points infallible But the Canons indeed of the Apostles which are of Order and External Government do oblige as Dr. Taylor says the Conscience by being accepted in several Churches not by their first Institution and were fitted only to Times and Places and present Necessities For says he the Apostolical Decree of Abstaining from Blood was observed by more Churches than those of Syria and Cilicia to which the Canon was directed and the Colledge of Widows or Deaconesses derived it self into the manners of the Western Churches And the Apostles in their first Preaching and Conversation in Jerusalem instituted a coenobitick life and had all things in Common with Believers indeed no man was obliged to it Of the same nature were their Canons Counsels and Advices The Canon concerning Widows Let not a Widow be chosen under 60 years and yet Justinian suffered one of 40 years old to be chosen Novel 123. c. 12 13. And the Canon of the Apostles forbidding to eat things strangled is no where observed in the Western Churches of Christendom In the beginning of the Fourth Century above 1300 years since we find our Bishops British Bishops at the Councils of Arles Nice Sardis and Ariminum a clear Evidence of the flourishing state of Christianity so long since in this Island At Arles in France conven'd touching the Donatists appeared for the Britains Eborius Bishop of York Restitutus Bishop of London Adelfius Bishop of the City called the Colony of London which some suppose to be Colchester others Maldon in Essex Sacerdos a Priest both by Name and Office Arminius a Deacon An. 313. At the Synod of Nice in Bithynia An. 325. to suppress Arrianism were British Bishops present as Athanasius and Hilary Bishop of Poictiers affirm At the Council of Sardis in Thracia conven'd by Constanitus and Constans Sons to Constantine the Great the British Bishops were likewise present when the Arrians were condemn'd and Athanasius acquitted And at the Council of Ariminum in Italy the British Bishops were also present who according to Athanasius were about An. 360. summoned to divers Forein Councils in remote parts As also here at home in and after the Seventh Century were divers particular Councils and Synods the first whereof according to Stapleton out of Bede called The first of the English Nation was conven'd at Hertford by Theodorus Archbishop of Canterbury who succeeded Deusdedit in that See in this Council the Observation of Easter was settled according to the Romish Rite yet whosoever will have this Council to be as aforesaid The first of the English Nation must understand it the First whose Canons are compleatly extant Bede lib. 4. c. 5. About the year 740 Ethelbald King of Mercia with Cuthbert Archbishop of Canterbury called a Council at Cliffe in Kent the acts of which Synod were 31 Canons among which is was inter alia Ordain'd That Prayers should publickly be made for Kings and Princes But some few years before this the said Theodorus held a Synod or Council of Bishops at Hatfield by authority whereof he divided the Province of Mercia which Sexwolphus then governed alone into five Bishopricks viz. to Chester Worcester Lichfield Cedema in Lindsey and to Dorchester In the year 692 a great Council was held at Becanceld by Withred King of Kent and Bertuald Archbishop of Britain wherein many things were concluded in favour of the Church About the same time a Council was held at Berghamsteed by the said Withred King of Kent at which Council Bishop Wilfrid was restored to York whence he departed for Rome upon the endeavours which Theodorus Archbishop of Canterbury had used to have that Diocess of York divided In the year 801 Ethelard the Archbishop called a Synod at Clivesho in Kent where by power from the Pope he rivited that 's the word the Archbishoprick into the City of Canterbury There was likewise at Celichyth an eminent Council under Wolphred who succeeded Ethelard Archbishop of Canterbury But nigh one hundred years before this viz. about the year 709 a Synod was assembled at Alncester in Worcestershire to promote the building of Evesham-Abbey And not long after another Synod was called at London to introduce the Doctrine of Image-Worship into England now first beginning to appear in the publick practice thereof Also above one hundred years before that viz. about the year 601. Augustine by the aid of Ethelbert King of Kent called a Council of Saxon and British Bishops to meet in the Confines of the Mercians and
whatsoever Name or Names they may be called in their Convocation in time coming which alwaies shall be assembled by the Kings Writ unless the same Clergy may have the Kings most Royal assent and License to make promise and execute such Canons Constitutions and Ordinances Provincial or Synodical upon pain of every one of the said Clergy doing the contrary to this Act and thereof convicted to suffer Imprisonment and making Fine at the Kings will Since this year from Archbishop Cranmer to this day all Convocations are to have the Kings leave to debate on matters of Religion and their Canons besides his Royal assent an Act of Parliament for their Confirmation And as to the General Councils there are not any of them of use in England except the first Four General Councils which are established into a Law by King and Parliament The Learned Bishop Prideaux in his Synopsis of Councils gives us the definition of Synodographie and says It is such a Methodical Synopsis of Councils and other Ecclesiastical Meetings as whereby there may be a clear discovery to him that doubts how any Case may be enquired after and what may be determined concerning the same And then immediately after gives us the definition of a Council which he calls a Free Publick Ecclesiastical Meeting especially of Bishops as also of other Doctors lawfully deputed by divers Churches for the examining of Ecclesiastical Causes according to the Scriptures and those according to the power given by Common Suffrages without favour of parties to be determined in matters of Faith by Canons in cases of Practice by Presidents in matters of Discipline by Decrees and Constitutions Of these Councils he observes some to have been Judaical others Apostolical others Oecumenical some Controverted others Rejected and some National to all which he likewise adds Conferences 1 Under the Title of Judaical Councils he comprehends the more solemn Meetings about extraordinary affairs for the Confirming Removing or Reforming any thing as the matter required Such he observes to have been at Sichem under Josuah and Eleazer Josh 24. At Jerusalem the first under David Gad and Nathan being his Assistants 1 Chro. 13. At Carmelita under Ahab and Elias 1 King 18. At Jerusalem the Second under Hezekiah 2. Chro. 29. At Jerusalem the Third under Josiah and Hilkiah 2 Kin. 33. 2 Chro. 34. At Jerusalem the Fourth under Zorobabel and Ezra and the Chief of the Jews that return'd from the Captivity of Babylon And lastly that which is called the Synod of the Wise under John Hircanus Genebrand Chron. l. 2 p. 197. 2 The Apostolical Councils he observes to have been for the substituting of Matthias in the place of Judas Act. 1. For the Election of Seven Deacons Act. 6. For not pressing the Ceremonial Law Act. 15. 11. For the toleration of some Legal Ceremonies for a time to gain the Weak by such condescension Matth. 21. 18. For composing the Apostles Creed For obtruding to the Church 85 Canons under the notion of the Apostles authority concerning which there are many Controversies Lastly for the Meeting at Antioch where among Nine Canons the Eighth commanded Images of Christ to be substituted in the room of Heathenish Idols the other pious Canons being destitute of the Synods authority vid. Bin. Tom. 1. p. 19. Longum p. 147. 3 Of Oecumenical or General Councils some were Greek or Eastern others were Latin or Western The more Famous of the Oecumenical Greek Councils were the Nicene the first of Constantinople the first of Ephesus the first of Chalcedon Of Constantinople the second of Constantinople the third The Nicene the second The more Famous of the Oecumenical Latin Councils were at Ariminum the Lateran at Lions at Vienna the Florentine the Lateran the fifth and lastly at Trent 4 Of Controverted Councils if that distinction be admissable according to the Classis thereof digested by Bellarmine the Computation is at Constantinople the fourth at Sardis at Smyrna at Quinisext at Francfort at Constance and at Basil 5 Of Rejected Councils whereby are intended such as either determine Heretical Opinions or raise Schisms the Computation is at Antioch at Milain at Seleucia at Ephesus the second at Constantinople at Pisa the first and at Pisa the second 6 Of National Synods which comprehend the Provincials of every Metropolitan or Diocesan Bishop the distribution is into Italian Spanish French German Eastern African Britain 7 To these may be added Ecclesiastical Conferences which were only certain Meetings of some Divines wherein nothing could be Canonically determined and therefore needless to be here particularly inserted vid. B. Prideaux Synops of Counc vers fin The grand Censure of the Church whereby it punisheth obstinate Offenders is by way of Excommunication which though the Canonists call Traditio Diabolo or giving the Devil as it were Livery and Seizin of the Excommunicate person yet the Romanists have a Tradition that St. Bernard Excommunicated the Devil himself Sanctus Bernardus plenus virtutibus quadam die praesentibus Episcopis clero populo Excommunicavit quendam Diabolum Incubum qui quandam mulierem in Britannia per septeunium vexabat sic Liberata est ab eo Chron. Jo. Bromton de Temp. H. 1. A miraculous Excommunication and a Sovereign Remedy against Diabolical incubations The Excommunication which St. Oswald pronounced against one who would not be perswaded to be reconciled to his Adversary had nothing so good though a more strange effect for that Excommunicated him out of his Wits and had it not been for Wolstan who as miraculously cur'd him you might have found him if not in Purgatory then in Bedlam at this day Illi cujus es says Sanctus Oswaldus Te commendo carnem Sathanae tuam trado Statim ille dentibus stridere spumas jacere caput rotare incipit Qui tamen à Wolstano sanatus cum Pacem adhuc recusaret iterum tertio est arreptus simili modo quousque ex corde injuriam remitteret offensam If you have not faith enough to believe this on the Credit of Abbot Brompton who Chronicled from the year 588 in which St. Austin came into England to the death of King Richard the First which was in the year 1198. if you have not I say faith enough for the premisses you are not like to be supplied with any on this side Rome unless you have it from Henry de Knighton Canon of Leyster who wrote the Chronicle De Eventibus Angliae from King Edgars time to the death of King Richard the Second for he in his Second Book de Temp. W. 2. doth put it under his infallible pen for an undeniable Truth And indeed is much more probable than what the said Abbot reports touching St. Austins raising to life the Priest at Cumpton in Oxfordshire 150 years after his death to absolve a penitent Excommunicate that at the same time rose also out of his grave and walked out of the Church at St. Austins command That no
Ecclesiastical Court might proceed to punish the Offender who offered violence to a Priest the which de jure it might do by proceeding Ex Officio pro salute animae Dammages on an Action of Battery in the case reserved to the Common Law To conclude The Protestation which Bellamera the Canonist in the Proem to his Lecture on the Clementine Constitutions makes shall as to this Repertorium Canonicum Jurisve Anglico-Ecclesiastici Compendium be mine Id submittens correctioni determinationi tam Canonum Ecclesiasticorum quam Statutorum Jurumque Publice Forensium Secularium cujuslibet melius sentientis Protestans quod si in praesenti Opusculo de lapsu chalami aut inadvertentia vel forte ex ignorantia aliqua jam Scripsero id praeter intentionem scribere me contigerit Si etiam aliqua Scripsero quae errorem saperent aut male sonarent illa ex nunc Revoco volo haberi pro non Scriptis Determinationibusque Ecclesiae Anglicanae dicti Juris Forensis Oraculis semper in omnibus volo stare Et hanc Protestationem volo pro Repetita haberi in quolibet Dictorum meorum etiam condicendorum ut si reprobantur dicta Actor non propter hoc reprobetur The several CHAPTERS of the Ensuing Abridgment CHAP. PAGE 1. OF His Majesties Supremacy 1 2. Of Archbishops 12 3. Of Bishops and Ordinaries 22 4. Of Guardians of the Spiritualties 39 5. Of Congé d'Eslire Election and Confirmation 43 6. Of Consecration 46 7. Of Deans and Chapters 51 8. Of Archdeacons 60 9. Of Procurations Synodals and Pentecostals 67 10. Of Diocesan Chancellors Commissaries Officials as also of Consistories 80 11. Of Courts Ecclesiastical and their Jurisdiction 94 12. Of Churches Chappels and Church-yards 134 13. Of Churchwardens Questmen and Sidemen 159 14. Of Consolidation and Vnion of Churches 169 15. Of Dilapidations 173 16. Of Patrons and De jure Patronatus 178 17. Of Parsons and Parsonages 185 18. Of Vicars Vicarages and Benefices 196 19. Of Advowsons 220 20. Of Appropriations 220 21. Of Commendams 230 22. Of Lapse 242 23. Of Collation Presentation and Nomination 251 24. Of Examination Admission Institution and Induction 269 25. Of Avoidance and Next Avoidance also of Cession 282 26. Of Pluralities 291 27. Of Deprivation 305 28. Of Incumbents also of Residence and Non-Residence 316 29. Of Abbots and Abbies also of Chauntreys and of the Court of Augmentations 326 30. Of Annates or First-Fruits also of Aumone or Frank-Almoin 335 31. Of Altarage 339 32. Of Tithes with the Incidents thereof 344 33. Of Banns 465 34. Of Adultery 469 35. Of Bastards and Bastardy 477 36. Of Divorce also of Alimony 492 37. Of Defamation 514 38. Of Sacriledge 528 39. Of Simony 535 40. Of Blasphemy Heresie and Hereticks 559 41. Of Councils Synods and Convocations 584 42. Of Excommunication 623 43. Of the Statutes Articuli Cleri and Circumspecte agatis 639 44. Of several Writs at Common Law pertinent to this Subject 643 AN ABRIDGEMENT OF Ecclesiastical LAWS CHAP. I. Of the Kings Supremacy 1. A Description thereof or what it is 2. The Establishment thereof by Statute Laws 3. The Oath of the Kings Supremacy when first Enacted the Cause thereof 4. The King in his own Dominions Dei Vicarius 5. The King Supream Governour under God of the Church in England c. 6. Impugners of the Kings Supremacy how censured by the Canon 7. In matters Ecclesiastical the King hath here the same power de jure which the Pope formerly exercised by Usurpation 8. The Kings of this Realm anciently made their own Canons and Ecclesiastical Constitutions without the Popes Authority 9. The King is Lex viva in some cases may dispence with some Canons 10. Provisoes of some Statutes in right of the Kings Supremacy 11. No Canons or Ecclesiastical Constitutions to be made or to be of force to oblige the Subject without the Royal Assent 12. The Regal Supremacy asserted by the Ecclesiastical Injunctions of King Ed. 6. 13. The same further asserted by other Eccles Powers and Authorities 14. The Regal Supremacy asserted in the Reign of Queen Elizabeth 1. THis Ecclesiastical Abridgment begins with the Regal Supremacy a Point which cannot be touch'd with too much tenderness such of the Church of Rome as question the validity thereof may be presumed not to have consulted that Learned Canonist of their own Jo. Quintinus Hoedeus where he says That Nemini dubium quin in Primitiva Ecclesia de rebus Personis Ecclesiasticis Principes jus dixerint The Emperours were all Secular Princes who by those Laws which they established touching Persons and Things Ecclesiastical proclaimed to all the world their Supremacy therein The Thirteen first Titles of the First Book of the Emperour Justinian's Code being the Constitutions of divers Emperours do treat and judge of Things and Persons meerly Ecclesiastical yea the Emperours Areadius and Honorius ejected a Bishop as well out of his Title of Ecclesiastical Dignity as out of his Episcopal See and commanded him to be Banished for disturbing the publick Peace l. quicunque C. de Episc Cleric By this word Supremacy is here understood that undoubted Right and ancient Jurisdiction over the State Ecclesiastical within these his Majesties Realms and Dominions with the abolishing of all Forein and Usurped Power repugnant to the same which the Laws and Statutes have restored to the Crown of this Kingdom and now invested in the King as the Highest Power under God within these his Majesties Realms and Dominions unto whom all persons within the same in all Causes and Matters as well Ecclesiastical as Temporal do owe their Loyalty and Obedience before and above all other Powers and Potentates on Earth whatever 2. By the Injunctions of King Ed. 6. to the Clergy all persons Ecclesiastical having cure of Souls were Four times a year to preach in vindication of the Kings Supremacy and in opposition to the usurped power of the Bishop of Rome in this Kingdom There were divers Laws made in the time of King H. 8. for the extinguishment of all Forein Power and for the restoring unto the Crown of this Realm the Ancient Rights and Jurisdictions of the same which is the substance of the Preamble of the Statute of 1 Eliz. cap. 1. The express Letter and meaning whereof is as Sir Edward Coke observes to restore and unite to the Crown the Ancient Jurisdiction Spiritual or Ecclesiastical where as he says the First clause of the Body of the Act being to let in the Restitution of the Ancient Right and Jurisdiction Ecclesiastical within the Realm doth abolish all Forein Jurisdiction out of the Realm And then followeth the principal Clause of Restitution and Uniting of the ancient Jurisdiction Ecclesiastical being the main purpose of the Act in these words viz. Be it Enacted That such Jurisdiction Spiritual or Ecclesiastical as by any Spiritual Power or Authority hath heretofore been or lawfully may be exercised or used
the Convocations of the same Clergy are and always have been and ought to be assembled only by the Kings Writ The Convocation is under the power and Authority of the King 21 E. 3. 45. b. 12. After the Reign of King H. 8. this Supremacy in the Crown was signally exercised by King Ed. 6. styling himself Supream Head under Christ of the Church of England and Ireland in the Preface of his Injunctions given as well to all the Clergy as Laity of this Realm the Close whereof is as followeth viz. All which singular Injunctions the Kings Majesty ministreth unto his Clergy and their Successors and to all his loving Subjects straitly charging and commanding them to observe and keep the same upon pain of Deprivation Sequestration of Fruits or Benefices Suspension Excommunication and such other Coercion as to Ordinaries or others having Ecclesiastical Jurisdiction whom his Majesty hath appointed for the due execution of the same shall be seen convenient Charging and commanding them to see these Injunctions observed and kept of all persons being under their Jurisdiction as they will answer to his Majesty for the contrary And his Majesties pleasure is That every Justice of Peace being required shall assist the Ordinaries and every of them for the due execution of the said Injunctions 14. The Three first Articles to be enquired of at the Visitations within the Province of Canterbury in the second year of the Reign of the said King Edward the Sixth were as followeth viz. 1. Whether Parsons Vicars and Curates and every of them have purely and sincerely without colour or dissimulation four times in the year at the least preached against the Usurped power pretended Authority and Jurisdiction of the Bishop of Rome 2. Whether they have preached and declared likewise four times in the year at least that the Kings Majesties power authority and preheminence within his Realms and Dominions is the highest power under God 3. Whether any person hath by writing cyphring preaching or teaching deed or act obstinately holden and stand with to extol set-forth maintain or defend the authority jurisdiction or power of the Bishop of Rome or of his See heretofore claimed and usurped or by any pretence obstinately or maliciously invented any thing for the extolling of the same or any part thereof Likewise by the Articles of Religion agreed on by the Convocation held in London and published An. 1553. by the Authority of King Ed. 6. it is declared That the King of England is Supream Head in Earth next under Christ of the Church of England c. and that the Bishop of Rome hath no Jurisdiction in this Realm The like you have in the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation held in London An. 1562. and published by the Authority of Queen Elizabeth That the Queens Majesty hath the chief Power in this Realm of England and other her Dominions unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any Forreign Jurisdiction Which Articles being the Articles of the Church of England were afterwards ratified and confirmed by his Majesty King CHARLES I. of ever Blessed Memory by his Royal Declaration thereunto prefixed in which Declaration you have as followeth viz. That we are Supream Governour of the Church of England and that if any difference rise about the External Policy concerning the Injunctions Canons or other Constitutions whatsoever thereto belonging the Clergy in their Convocation is to order and settle them having first obtained leave under our Broad Seal so to do and We approving their said Ordinances and Constitutions provided that none bâ— made contrary to the Laws and Customes of the Land Likewise in the first of the aforesaid Injunctions of King Ed. 6. as also in the first of the Injunctions given by Q. Elizabeth concerning both the Clergy and Laity of this Realm published Ann. 1559. being the first year of her Reign it is enjoyned That all Deans Archdeacons Parsons Vicars and all other Ecclesiastical persons shall faithfully keep and observe c. all and singular Laws and Statutes made for the restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and abolishing of all Forreign power repugnant to the same c. By the Statute of 25 H. 8. c. 19. Appeals to Rome are prohibited and it is Ordained that in default of Justice in any of the Courts of the Archbishops of this Realm it shall be lawful to appeal to the King in his Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is given to the King in Chancery upon Sentences in places exempt in the same manner as was before used to the See of Rome And as by the said Statute there may be an Appeal to the King in Chancery when the Suit is in the Archbishops Court or some Peculiar exempt so in some Cases the Appeal may be to the King generally as he is Supream Head of all Ecclesiastical Jurisdiction within the Realm for by the Statutes made in the time of King Hen. 8. the Crown was only remitted and restored to its Ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. Fitz. Aid del Roy 103. Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Rex est Mixta persona cum Sacerdote Et causa Spiritualis Committi potest Principi Laico Cassan in Catal. glo mund p. 5. Consid 24. The King of England c. is Persona Sacra mixta cum Sacerdote and at his Coronation by a solemn Consecration and Unction becomes a Spiritual person Sacred and Ecclesiastical and then hath tam Vestem Dalmaticam as an emblem of his Royal Priesthood quam Coronam Regni in respect of his Regal power in Temporals and is Supream Governour in all Causes and over all Persons as well Ecclesiastical as Civil The King is Supream Ordinary by the Ancient Common Law of England before the Statute of 24 H. 8. cap. 12. for a Resignation might be made to him he might make a Grant of a Church to a man to hold to his own proper use he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary but also give him Episcopal Jurisdiction he might Present to Free Chappels in default of the Dean by Lapse and that as Ordinary and in respect of his Supream Ecclesiastical Jurisdiction he might dispense with one not lawfully born to be a Priest albeit the Ecclesiastical Laws allowed within this Realm do prohibite it but the reason is for that it is not Malum in se but Malum prohibitum In a word All that the Pope was wont to do in such cases within this Realm as
which in the days of King Lucius was an Archbishoprick as aforesaid till St. Augustine in the year 598 took on him the Title of Archbishop of England setling his See at Canterbury 8. Upon the abrogating of the Popes power in England by King H. 8. in the Seventh year of his Reign it was concluded that the Archbishop of Canterbury should no more be styled the Popes Legate but Primate and Metropolitan of all England at which time Tho. Cranmer Fellow of Jesus-Colledge in Cambridge who pronounced the Divorce from Queen Katharine of Spain upon his advice given the King to leave the Court of Rome and to require the Opinions of Learned Divines being then in Germany procured such favour with the King that he caused him to be elected to this See of Canterbury and was afterwards with the then Bishop of Duresme made Tutor to King Edward the Sixth 9. The Archbishop of Canterbury was supposed to have had a concurrent Jurisdiction in the inferiour Diocesses within his Province which is not denied in the case of Dr. James only it is there said That was not as he was Archbishop but as he was Legatus Natus to the Pope as indeed so hâ— was before the tâ—me of King H. 8. as aforesaid by whom that Power together with the Pope was abrogated and so it ceased which the Archbishop of York never had nor ever claimed as appears in the forecited Case where it is further said That when there is a Controversie between the Archbishop and a Bishop touching Jurisdiction or between other Spiritual Persons the King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and that is a right of his Crown to distribute to them that is to declare their Bounds Consonant to that which is asserted in a Case of Commendam in Colt and Glovers Case against the Bishop of Coventry and Lichâ—ield where it is declared by the Lord Hobart Chief Justice That the King hath an immediate personal originary inherent Power which he executes or may execute Authoritate Regia Suprema Ecclesiastica as King and Sovereign Governour of the Church of England which is one of those Flowers qui faciunt Coronam which makes the Royal Crown and Diadem in force and vertue The Archbishop of Canterbury as he is Primate over All England and Metropolitan hath a Supereminency and some power even over the Archbishop of York hath under the King power to summon him to a National Synod and Archiepiscopus Eboracensis venire debet cum Episcopis suis ad nutum ejusâ— ut ejus Canonicis dispositionibus Obediens existat Yet the Archbishop of York had anciently not only divers Bishopricks in the North of England under his Province but for a long time all the Bishopricks of Scotland until little more than 200 years since and until Pope Sixtus the Fourth An. 1470. created the Bishop of St. Andrews Archbishop and Metropolitan of all Scotland He was also Legatus Natus and had the Legantine Office and Authority annexed to that Archbishoprick he hath the Honour to Crown the Queen and to be her perpetual Chaplain Of the forementioned Diocesses of his Province the Bishop of Durham hath a peculiar Jurisdiction and in many things is wholly exempt from the Jurisdiction of the Archbishop of York who hath notwithstanding divers Priviledges within his Province which the Archbishop of Canterbury hath within his own Province 10. The Archbishop is the Ordinary of the whole Province yet it is clear That by the Canon Law he may not as Metropolitan exercise his Jurisdiction over the Subjects of his Suffragan Bishops but in certain Cases specially allowed in the Law whereof Hostiensis enumerates one and twenty The Jurisdiction of the Archbishop is opened sometimes by himself nolente Ordinario as in the Case of his Visitation and sometimes by the party in default of Justice in the Ordinary as by Appeal or Nullities Again it may sometimes be opened by the Ordinary himself without the party or Archbishop as where the Ordinary sends the Cause to the Archbishop for although the Canon Law restrains the Archbishop to call Causes from the Ordinary Nolente Ordinario save in the said 21 Cases yet the Law left it in the absolute power of the Ordinary to send the Cause to the Archbishop absolutely at his will without assigning any special reason and the Ordinary may consult with the Archbishop at his pleasure without limitation Notwithstanding which and albeit the Archbishop be Judge of the whole Province tamen Jurisdictio sua est signata non aperitur nisi ex causis Nor is the Subject hereby to be put to any such trouble as is a Grievance and therefore the Law provides that Neminem oportet exire de Provincia ad Provinciam vel de Civitate ad Civitatem nisi ad Relationem Judicis ita ut Actor forum Rei sequatur 11. If the Archbishop visit his Inferiour Bishop and Inhibit him during the Visitation if the Bishop hath a title to Collate to a Benefice within his Diocess by reason of Lapse yet he cannot Institute his Clerk but he ought to be presented to the Archbishop and he is to Institute him by reason that during the Inhibition his power of Jurisdiction is suspended It was a point on a special Verdict in the County of Lincoln and the Civilians who argued thereon seemed to agree therein but the Case was argued upon another point and that was not resolved Likewise by the Statute of 25 H. 8. c. 21. the Archbishop of Canterbury hath power to give Faculties and Dispensations whereby he can as to Plurality sufficiently now Dispense de jure as Anciently the Pope did in this Realm de facto before the making of that Statute whereby it is enacted That all Licenses and Dispensations not repugnant to the Law of God which heretofore were sued for in the Court of Rome should be hereafter granted by the Archbishop of Canterbury and his Successors 12. By the Constitutions and Canons Ecclesiastical Edit 1603. Can. 94. It is Ordained That no Dean of the Arches nor Official of the Archbishops Consistory shall originally Cite or Summon any person which dwelleth not within the particular Diocess or Peculiar of the said Archbishop c. without the License of the Diocesan first had and obtained in that behalf other than in such particular Cases only as are expresly excepted and reserved in and by the Statute of 23 H. 8. c. 9. on pain of suspension for three months In the Case of Lynche against Porter for a Prohibition upon the said Statute of 23 H. 8. c. 9. it was declared by the Civilians in Court That they used to Cite any Inhabitant of and in London to appear and make Answer in the Archbishop of Canterbury's high Court of Arches originally And Dr. Martyn said It had been so used for the space of 427 years before the making of the Statute and upon
complaint thereof made to the Pope the Answer was That any man might be Cited to the Arches out of any Diocess in England Also That the Archbishop may hold his Consistory in any Diocess within his Jurisdiction and Province That the Archbishop hath concurrent Jurisdiction in the Diocess of every Bishop as well as the Archdeacon and That the Archbishop of Canterbury prescribes to hold Plea of all persons in England But as to his power of having a Consistory in the Diocess of every Bishop this was in this Case denied but only where he was the Popes Legate whereof there were Three sorts 1. Legates à Latere and these were Cardinals which were sent à Latere from the Pope 2. A Legate born and these were the Archbishops of Canterbury York and Mentz c. 3. A Legate given and these have Authority by special Commission from the Pope Likewise in the Case of Jones against Boyer C. B it was also said by Dr. Martyn That the Archbishop hath Ordinary Jurisdiction in all the Diocesses of his Province and that this is the cause that he may Visit 13. The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England from whom the Irish Bishops received their Consecration for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings That Canterbury was the Metropolitan Church of England Scotland and Ireland and the Isles adjacent the Archbishop of Canterbury was therefore sometimes styled a Patriarch and Orbis Britannici Pontifex insomuch that Matters recorded in Ecclesiastical Affairs did run thus viz. Anno Pontificatus Nostri primo secundo c. He was also Legatus Natus that is he had a perpetual Legantine power annext to his Archbishoprick nigh a thousand years since And at General Councils he had the Precedency of all other Archbishops abroad and at home he had some special Marks of Royalty as to be the Patron of a Bishoprick as he was of Rochester to coyn Mony to make Knights and to have the Wardships of all those who held Lands of him Jure Hominii although they held in Capite other â—ands of the King as was formerly hinted He is said to be Inthroned when he is invested in the Archbishoprick And by the Stat. of 25 H 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome not repugnant to the Law of God or the Kings Prerogative As also to allow a Clerk to hold a Benefice in Commendam or in Trust to allow a Clerk rightly qualified to hold Two Benefices with Cure of Souls to allow a Beneficed Clerk for some certain causes to be non-Resident for some time and to Dispense in several other Cases prohibited by the Letters of the Canon Law Likewise the Archbishop of Canterbury Consecrates other Bishops confirms the Election of Bishops within his Province calls Provincial Synods according to the Kings Writ to him ever directed is chief Moderator in the Synods and Convocations he Viâ—its the whole Province appoints a Guardian of the Spiritualties during the vacancy of any Bishoprick within his Province whereby all the Episcopal Ecclesiastical Rights of that Diocess for that time belong to him all Ecclesiastical Jurisdictions as Visitations Institutions c. He may retain and qualifie Eight Chaplains which is more by Two than any Duke is allowed by Statute to do and hath power to hold divers Courts of Judicature for the decision of Controversies pertaining to Ecclesiastical Cognizance CHAP. III. Of Bishops and Ordinaries 1. Bishop Why so called Not above One to be in one Diocess 2. Why called Ordinary and what the Pallium Episcopale is 3. Bishopricks originally Donative Kings of England the Founders thereof 4. The manner of Election of Bishops their Confirmation and Consecration 5. Their Seals of Office in what cases they may use their own Seals 6. What follows upon Election to make them Bishops compleat the grant of their Temporalties 7. The Conge d'eslire and what follows thereupon 8. Bishopricks were Donative till the time of King John 9. What the Interest and Authority is in his several capacities 10. Episcopal Authority derived from the Crown 11. The Vse and Office of Suffragan Bishops 12. Whether a Bishop may give Institution out of his own proper Diocess and under other Seal than his own Seal of Office 13. Several things incident to a Bishop qua talis 14. Ordinary what properly he is and why so called 15. In what cases the Ordinaries Jurisdiction is not meerly Local 16. The Ordinaries power de jure Patronatûs 17. Whether the Ordinary may cite a man out of his own Diocess Also his Right ad Synodalia 18. The Ordinaries power of Visitation 19. The Dignity and true Precedency of the Bishops in England 20. Temporal Jurisdiction anciently exercised by Bishops in this Realm the Statute of 17 Car. 1. against it Repealed and they Restored to it by the Stat. of 13 Car. 2. as formerly 21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops the Endeavours thereby to take away Episcopal Jurisdiction the Nomination of all Bishops was Anciently Sole in the King 22. The Bishops of London are Deans of the Episcopal Colledge 23. A Case at Common Law touching a Lease made by one Bishop during the life of another of the same Diocess in Ireland 1. BISHOP Episcopus from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 supra and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intendere an Overseer or Superintendent so called from that watchfulness care charge and faithfulness which by his Place and Dignity he hath and oweth to the Church A word which all Antiquity hath appropriated to signifie the Chief in Superintendency over the whole Church within his Diocess wherein are divers inferiour Pastors This Oversight or Care the Hebrews call Pekudah Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same Diocess whence it is that Cornelius Bishop of Rome as Eusebius relates upbraided Novatius for his ignorance in that point when he could not but know there were no less than 46 Presbyters in that Church Oecumenius and St. Chrysostome affirming also as many at Philippi For in this restrained sense as the word Bishop is now taken it cannot be imagined that there should be more than one in one City or Diocess at the same time consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City This Novatius aforesaid was a Priest of Rome 254 years after Christ he abhorred Second Marriages and was condemned as an Heretick in a Synod at Rome the same year Every Bishop many Centuries after Christ was universal Incumbent of his Diocess received all the Profits which were but Offerings of Devotion out of which he paid the Salaries of such as Officiated under himâ—
17. is to that purpose 11. In former times many Bishops had their Suffragans who were also Consecrated as other Bishops were These in the absence of the Bishops upon Embassies or in multiplicity of business did supply their places in matter of Orders but not in Jurisdiction These were chiefly for the ease of the Bishops in the multiplicity of their Affairs ordained in the Primitive times called Chorepiscopi Suffragan or Subsidiary Bishops or Bishops Suffragans and were Titular Bishops Consecrated by the Archbishop of the Province and to execute such Power and Authority and receive such profits as were limited in their Commissions by the Bishops or Diocosans whose Suffragans they were What Towns or Places to be the Sees of Bishops Suffragans and how many to a Diocess and in what Diocesses appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop or some other Bishop desire the same In which case the Bishop presents Two able persons for any place allowed by the said Act of Parliament whereof his Majesty doth chuse one but at present there are no Suffragan Bishops in England They were no other than the Chorepiscopi of the Primitive Times Subsidiary Bishops ordained for easing the Diocesan of some part of his burthen as aforesaid by means whereof they were enabled to perform such Offices belonging to that Sacred Function not limited to time and place by the ancient Canons by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper Diocess Of these there were twenty six in the Realm of England distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination The Names and Number whereof together with the Jurisdiction and preheminences proportioned to them the Reader may peruse in the Act of Parliament made An. 26 H. 8. 12. According to the Temporal Laws of this Land if a Bishop grant Letters of Institution under any other Seal than his Seal of Office and albeit it be out of his Diocess yet it is good For in Cort's Case against the Bishop of St. Davids and others where the Plaintiff offered in evidence Letters of Institution which appeared to be sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there and which Letters were made also out of the Diocess It was held That they were good enough albeit they were sealed with another Seal and made out of the Diocess for that the Seal is not material it being an Act made of the Institution And the writing and sealing is but a Testimonial thereof which may be under any Seal or in any place But of that point they would advise 13. A Bishop if he celebrate Divine Service in any Church of his Diocess may require the Offerings of that day He may sequester if the King present not and 12 H. 8. 8. by Pollard he must see the Cure served if the person fail at his own Costs He may commit Administration where Executors being called refuse to prove the Will He hath power of distribution and disposing of Seats and charges of Repairs of the Churches within his Diocess He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other but if he will chuse the Clerk of either at his peril he ought at his peril to receive him that hath Right by the Statute He may License Physicians Chirurgions Schoolmasters and Midwives He may Collate by Lapse He may take competent time to examine the sufficiency and fitness of a Clerk He may give convenient time to persons interested to take notice of Avoidances He is discharged against the true Patron and quit of Disturbance to whom it cannot be imputed if he receive that Clerk that is in pursuance of a Verdict after Inquest in a Jure Patronatus He may have Six Chaplains and every Archbishop may have Eight Chaplains He may unite and consolidate small Parishes and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure joyn and associate himself to the Justices of Oyer and Terminer or to the Justices of Assize at the open and general Sessions to be holden at any place within his Diocess in Causes of the Church And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly and is commonly styled the Ordinary of that Diocess where he doth exercise his Episcopal Authority and Jurisdiction In Parliament Bishops as Barons may be present and Vote at the Trial and Arraignment of a Peer only before Sentence of death or loss of Member be pronounced that they may have no hand in blood in any kind they have by Canon Law the Priviledge and Injunction to absent themselves and by Common Law to make Proxies to vote for them 14. ORDINARY according to the acceptation of the Common Law with us is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical immediate to the King He is in Common understanding the Bishop of the Diocess who is the Supervisor and for the most part Visitor of all his Churches within his Diocess and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his Diocess in jure proprio non per deputationem and therefore it is his care to see that the Church be provided of an able Curate Habet enim Curam Curarum and may execute the Laws of the Church by Ecclesiastical Censures and to him alone are made all Presentations to Churches vacant within his Diocess Ordinarius habet locum principaliter in Episcopo aliis Superioribus qui soli sunt Vniversales in suis Jurisdictionibus sed sunt sub eo alii Ordinarii hi videlicet quibus Competit Jurisdictio Ordinaria de jure privilegio vel consuetudine Lindw cap. Exterior tit de Constitutionib 15. The Jurisdiction of the Ordinary or Bishop as to the Examination of the Clerk or as to the Admission or Institution of him into a Benefice is not Local but it follows the person of the Ordinary or Bishop wheresoever he is And therefore if a Clerk be presented to the Bishop of Norwich to a Church which is void within the Diocess of Norwich who is then in London or if it be to a Bishop of Ireland who is then in England and in London the Ordinary may examine the Clerk or give him Admission or Institution in London And so it was adjudged 16. The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first for as he
may take competent time to examine the sufficiency and fitness of a Clerk so may he give convenient time to persons interessed to take knowledge of the Avoidance even in case of Death and where notice is to be taken not given to present their Clerks to it And perhaps if he do receive the Clerk of him that comes first yet he may quit himself of Disturbance because he doth nothing therein but as Ordinary in Law But if two or more Present so that the Title is become Litigious then and in such case he cannot receive the Clerk of any of his own pleasure except the Title be certain but hath his way of safety by Jure Patronatus and when he hath used the Jure Patronatus and that finds for one party yet he may still receive a contrary Clerk if he will for who can lett him but that must be at his own peril and that is at a double peril 1. That the Title be the better 2. That the Patron whose Clerk he hath received will plead and defend that Title for otherwise he cannot do it But though after Inquest in Jure Patronatus the Ordinary may accept the contrary Clerk yet it is against Justice and the intent of the Law For since it is a Provision meerly for the good and safety of the Ordinary and he pretends Doubt and therefore puts the Patron to this enquiry to his charge and delay to satisfie and secure him he ought to judge and receive the Clerk according to that Verdict And that is the true meaning of the Books that say that the Ordinary is to judge of the better Title that is not to prejudge of his own Will but secundum allegata probata upon Verdict of the Right given and found according to the form of Law to give Institution which is his Judgment and the Induction his Execution And though it is but an Inquest of Office and therefore binds not True it is it binds not but with a distinction that is it binds not the Patron in his Quare Impedit but is Final even to the true Patron that he cannot impute disturbance to the Ordinary following that Verdict and therefore it ought to bind him to follow it For to these purposes it is a full Verdict never to be tried again And if but one Present if the Ordinary make doubt of his Title as in many cases he justly may being a stranger to it he may require satisfaction by Jure Patronatus 17. If it be demanded whether the Ordinary can cite a man out of his Diocess the Common Law answers it in the Negative And so it was held by Jones and Whitlock Justices in Brown's Case where they held That at the Common Law a Bishop cannot cite a man out of his Diocess and there Whitlock held that the Ordinary hath not any power of Jurisdiction out of his Diocess but to absolve a person Excommunicated If one in N. commit Adultery in another Diocess during the time of his Residence he may be cited in the Diocess where he committed the offence although he dwell out of the Diocess by Coke Warburton and Winch And in the time of his Visitation he hath Jus ad Synodalia according to the Custome more or less as in Gloucestershire where the Impropriation of Dereburt pays annually 7s 9d pro Synodalibus Procurationibus for this Synodal is not in this sense here taken as in the Statute of 25 H. 8. cap. 19. for Synodals Provincial which seem to signifie the Canons or Constitutions of a Provincial Synod nor for the Synod it self which the word Synodale doth sometimes signifie but it is here in the same sense as the word Synodies in the Statute of 34 H. 8. cap. 16. for a Synodal is no other than a Cense or Tribute in mony paid to the Bishop or Archdeacon by the Inferiour Clergy 18. Every Spiritual person is visitable by the Ordinary So is a Dean de mero jure for he is Spiritual The Ordinary hath also power of Correction of a Parson And every Hospital be it Lay or Spiritual is Visitable By the ancient Law of the Realm the King hath power to Visit reform and correct all Abuses and Enormities in the Church Nor are the Kings Donatives visitable by the Ordinary but properly by the Lord Chancellour And the King may grant a Special Commission to that purpose But as to Hospitals if they be Spiritual the Ordinary shall visit them if they be Lay-Hospitals the Patron In the Statute of 1 El. cap. 2. there is a Proviso That all and singular Archbishops and Bishops and every of their Chancellors Commissaries Archdeacons and other Ordinaries having any peculiar Ecclesiastical Jurisdiction shall have full power and authority by virtue of this Act as well to enquire in their Visitations Synods and elsewhere within their Jurisdiction or any other time or place to take occasions and informations of all and every the things above-mentioned done committed or perpetrated within the Limits of their Jurisdiction or Authority and to punish the same by Admonition Excommunication Sequestration or Deprivation and other Censures and Process in like manner as heretofore hath been used by the Queens Ecclesiastical Laws The Ancient custome was for the Visitor to visit in his own person visitare Ecclesiatim per cunctas Dioceses parochiasque suas 10. q. 1. c. Episcopum E. Concil Toletan 4. ca. 35. This Visitation is a special and peculiar duty belonging to every Bishop as derived from the Apostles who themselves were Visitors and for that end and purpose did pertransire Ecclesias Vrbes The Bishop hath his Triennials per Archidiaconi Visitatio potest fieri singulis annis Extr. de Offic. Archid. c. Mandamus We find also that Episcopus debet Visitare singulis annis Parochiam nisi dimittat propter gravamen Ecclesiarum tunc mittat Archidiaconum c. Ab. Sic. super 2. 1. de Offic. Archid. c. ut Archidiaconus 10. q. 1. c. Decrevimus c. Episcopum 19. Every Bishop hath his Cathedral and Council and the Council and Bishop there decide matters of Controversie the Prebends have their names from the affording of help to the Bishop If any Clerk after he hath sworn Canonical Obedience should happen to commit Episcopicide he is guilty of Petty-Treason and shall suffer as such Whereas heretofore the County of Gloucester was a part of the Diocess of Worcester out of which it was taken by King H. 8. when first made a Bishoprick the Diocess of Worcester was in the time of King Ed 6. laid to the See of Gloucester Dr. Heylin 's Hist Eccl. p. 101. Next unto the Two Archbishops the Bishop of London of all the other Bishops hath the Preheminence Episcopus Londinensis says an Ancient Record speciali quadam Dignitate caeteris anteponendus quia Ecclesiae Cantuariensis Decanus est Provincialis The Bishop of Duresme who is
next in precedency hath been a Count Palatine about six or seven hundred years and hath at this day the Earldom of Sadberg long since annexed to this Bishoprick by the King Note a President hath been shewed at Common Law That the Bishop of Durham imprisoned one for a Lay-Cause and the Archbishop of York as his Sovereign cited him to appear before him to answer for that Imprisonment and the Archbishop was fined four thousand Marks Cro. par 1. The Bishop of Winchester was anciently reputed Earl of Southampton All the other Bishops take place according to the Seniority of their Consecration unless any Bishop happen to be made Lord Chancellor Treasurer Privy Seal or Secretary of State which anciently was very usual All the Bishops of England are Barons and Peers of the Realm have place in the Upper house of Parliament as also in the Upper house of Convocation The Bishopricks were erected into Baronies by William the Conqueror at his coming into England And as a special remark of Honour Three Kings viz. of England Scotland and South-Wales in the year 1200. did contribute their Royal shoulders for the conveyance of the deceased Corps of Hugh Bishop of Lincoln to his Grave And no wonder when Princes themselves and such as were of the Blood Royal were anciently Bishops in this Kingdom they have been not only of the best Nobility but divers of the Sons and Brothers of several English Kings since the Conquest and before have entred into Holy Orders and became Ecclesiasticks as at this day is practicable in the most of all other Monarchies throughout the whole Christian World Ethelwolph Son and Successor to Egbert first Sole King of England was in Holy Orders and Bishop of Winchester at his Fathers death Odo Brother to William the Conqueror was Bishop of Bayeux in Normandy Henry de Blois Brother to King Stephen was Bishop of Winchester Geofry Plantagenet Son to King Henry the Second was Bishop of Lincoln And Henry de Beauford Brother to King Henry the Fourth was Bishop also of Winchester 20. The Statute of 17 Car. 1. cap. 27. for disinabling persons in Holy Orders to exercise Temporal Jurisdiction or Authority being Repealed as aforesaid by the Statute of 13 Car. 2. cap. 2. they are thereby restored to the exercise of Temporal Jurisdiction as formerly which indeed is no more than what they ever Anciently exercised in this Kingdom For Ex Clero Rex semper sibi eligebat Primos à Consiliis Primos ad Officia Regni obeunda Primi igitur sedebant in omnibus Regni Comitiis Tribunalibus Episcopi in Regali quidem Palatio cum Regni Magnatibus in Comitatu una cum Comite in Turno cum Vice-comite in Hundredo cum Domino Hundredi sic ut in promovenda Justitia usquequaque gladii gladium adjuvaret nihil inconsulto Sacerdote vel Episcopo ageretur This Union of Persons Authority and Courts of Judicature Ecclesiastical and Civil as Mr. Selden proves continued above Four thousand years till Pope Nicholas the First about the Eighth Century to exclude the Emperour from medling in the Ecclesiastical Government began to exclude the Clergy from medling with the Civil And for the space of four or five hundred years during the Reign of the Saxon Kings in England the Ecclesiastical and Secular Magistrates sate joyntly together determining Ecclesiastical Affairs in the Morning and Secular or Civil Affairs in the Afternoon so that in those days as there was no clashing of Jurisdictions so no complaint touching Prohibitions but an unanimous harmony in a kind of Joynt-Jurisdiction in reference to all Ecclesiastical and Civil Affairs until William the Conqueror did put a distinction between Church and State in a more divided way than formerly had been practiced Also the excellent Laws made by King Ina King Athelstan King Edmund and St. Edward the Confessor from whom we have our Common Laws and our Priviledges mentioned in Magna Charta were all made by the perswasions and advice of Archbishops and Bishops named in our Histories 21. That which during the Reign of King Edw. 6. made the greatest alteration and threatned most danger to the State Ecclesiastical was the Act entituled An Act for Election and what Seals and Styles shall be used by Spiritual persons c. In which it was ordained That Bishops should be made by the Kings Letters Patents and not by the Election of the Deans and Chapters That all their Processes and Writings should be made in the Kings Name only with the Bishop's Teste added to it and sealed with no other Seal than the Kings or such as should be Authorized and Appointed by him In the compounding of which Act there was more danger as Dr. Heylin observes couched than at first appeared For by the last Branch thereof it was plain and evident says he that the intent of the Contrivers was by degrees to weaken the Authority of the Episcopal Order by forcing them from their strong hold of Divine Institution and making them no other than the Kings Ministers only or as it were his Ecclesiastical Sheriffs to execute his Will and disperse his Mandates And of this Act such use was made though possibly beyond the true intention of it that as the said Dr. Heylin observes the Bishops of those Times were not in a Capacity of conferring Orders but as they were thereunto impowred by special License The Tenour whereof if Sanders be to be believed was in these words following viz. The King to such a Bishop Greeting Whereas all and all manner of Jurisdiction as well Ecclesiastical as Civil flows from the King as from the Supream Head of all the Body c. We therefore give and grant to thee full power and License to continue during our good pleasure for holding Ordination within thy Diocess of N. and for promoting fit persons unto Holy Orders even to that of the Priesthood Which being looked on by Queen Mary not only as a dangerous diminution of the Episcopal Power but as an odious Innovation in the Church of Christ she caused this Act to be Repealed in the first year of her Reign leaving the Bishops to depend on their former claim and to act all things which belonged to their Jurisdiction in their own Names and under their own Seals as in former times In which estate they have continued without any Legal Interruption from that time to this But says the same Author in the First Branch there was somewhat more than what appeared at the first sight For though it seemed to aim at nothing but that the Bishops should depend wholly on the King for their preferment to those great and eminent places yet the true drift of the Design was to make Deans and Chapters useless for the time to come and thereby to prepare them for a Dissolution For had nothing else been intended in it but that the King should have the sole Nomination of all the Bishops in his Kingdoms it had
been only a reviver of an Ancient power which had been formerly invested in his Predecessors and in all other Christian Princes If we consult the Records of elder Times it will readily appear not only that the Roman Emperours of the House of France did Nominate the Popes themselves but that after they had lost that power they retained the Nomination of the Bishops in their own Dominions The like done also by the German Emperours by the Kings of England and by the Ancient Kings of Spain The Investure being then performed per Annulum Baculum that is by delivering of a Ring together with a Crosier or Pastoral Staff to the party nominated 22. By Ancient Right the Bishops of London are accounted Deans of the Episcopal Colledge and being such are by their place to signifie the pleasure of their Metropolitan to all the Bishops of the Province to execute his Mandates and disperse his Missives on all emergency of Affairs As also to preside in Convocations or Provincial Synods during the vacancy of the See or in the necessary absence of the Metropolitan 23. In O Brian and Knivan's Case the Case was That King Ed. 6. under his Privy Seal signified to Sir J. C. and to the Lord Chancellor and others in Ireland That he elected and appointed J. B. to be Bishop of Ossory Requiring them to Instal him in the Bishoprick The Deputy being removed the Chancellor and the other made a Commission under the Great Seal of Ireland to the Bishop of Dublin to Consecrate him which was done accordingly and he did his Fealty and recovered the Temporalties out of the Kings hands Afterwards in the life of J. B. Queen Mary elected J. T. to be Bishop there who was likewis◠Consecrated and who made a Lease of divers Lands of the Bishoprick for 101 years which was confirmed by the Dean and Chapter J. B. died and after J. T. died J. W. was elected Bishop The Questions in the Case were 1. Whether J. B. was well created Bishop 2. Whether this Lease made by J. T. being Bishop de facto but not de jure in the life of J. B. he surviving J. B. should be good to bind the Successor Resolved The Commission was well executed although the Deputy Sir J. C. were removed 2. Resolved That before the Statute of 2 Eliz. the King might by Patent without a Writ of Congé d'eslire create a Bishop for that was but a Form or Ceremony 3. Resolved That although J. T. was Bishop de facto in the life of J. B. that the Lease made by him for 101 years was void though it was confirmed by the Dean and Chapter and should not bind the Successor But all Judicial Acts made by him as Admissions Institutions c. should be good but not such voluntary Acts as tended to the depauperation of the Successor A Bishop made a Lease for three Lives not warranted by the Statute of 1 Eliz. rendring Rent the Successor accepted the Rent It was Resolved It should bind him during his time so as he shall not avoid the Lease which otherwise was voidable CHAP. IV. Of the Guardian of the Spiritualties 1. What the Office of such a Guardian is and by whom Constituted 2. The power of such Guardians in vacancy of Archbishopricks 3. What Remedy in case they refuse to grant such Licenses or Dispensations as are legally grantable 4. Who is Guardian of the Spiritualties of Common Right 5. What things a Guardian of the Spiritualties may do 1. GVardian of the Spiritualties Custos Spiritualium vel Spiritualitatis is he to whom the Spiritual Jurisdiction of any Diocess during the vacancy of the See is committed Dr. Cowell conceives that the Guardian of the Spiritualties may be either Guardian in Law or Jure Magistratus as the Archbishop is of any Diocess within his Province or Guardian by Delegation as he whom the Archbishop or Vicar General doth for the time depute Guardian of c. by the Canon Law pertains to the Appointment of the Dean and Chapter c. ad abolend Extr. Nè sede vacante aliquid innovetur But with us in England to the Archbishop of the Province by Prescription Howbeit according to Mr. Gwin in the Preface to his Readings divers Deans and Chapters do challenge this by Ancient Charters from the Kings of this Realm Cowell verb. Custos This Ecclesiastical Office is specially in request and indeed necessarily in the time of the Vacancy of the Episcopal See or when the Bishop is in remotis agendis about the publick Affairs of the King or State at which time Presentations must be made to the Guardian of the Spiritualties which commonly is the Dean and Chapter or unto the Vicar General who supplies the place and room of the Bishop And therefore if a man Recover and have Judgment for him in a Quare Impedit and afterwards the Bishop who is the Ordinary dieth In this case the Writ to admit the Clerk to the Benefice must be directed to the Guardian of the Spiritualties Sede vacante to give him Admission But if before his Admission another be created Bishop of that See and Consecrated Bishop in that case the power of the Guardian of the Spiritualties doth cease and the party may have a new Writ to the new Bishop to admit his Clerk A Guardian of the Spiritualties may admit a Clerk but he cannot confirm a Lease 2. The Guardian of the Spiritualties takes place as well in the vacancy of Archbishopricks as Bishopricks and hath power of granting Licenses Dispensations and the like during such Vacancies by the Statute of 25 H. 8. whereby it is provided and enacted That if it happen the See of the Archbishop of Canterbury to be void that then all such Licenses Dispensations Faculties Instruments Rescripts and other Writings which may be granted by virtue of the said Act shall during such vacation of the said See be had done and granted under the Name and Seal of the Guardian of the Spiritualties of the said Archbishoprick according to the tenor and form of the said Act and shall be of like force value and effect as if they had been granted under the Name and Seal of the Archbishop for the time being Where it is also further enacted 3. That if the said Guardian of the Spiritualties shall refuse to grant such Licenses Dispensations Faculties c. to any person that ought upon a good just and reasonable cause to have the same then and in such case the Lord Chancellor of England or the Lord Keeper of the Great Seal upon any complaint thereof made may direct the Kings Writ to the said Guardian of the Spiritualties during such Vacancy as aforesaid refusing to grant such Licenses c. enjoyning him by the said Writ under a certain penalty therein limited at the discretion of the said Lord Chancellor or Lord Keeper that he shall in due form grant such License Dispensation Faculty
1 Jac. cap. 3. vid. 17 Ed. 3. cap. 40. 2. The Congé d'Eslire being granted to the Dean and Chapter they proceed accordingly to Election which in the sense here intended as appropriated to this Subject is that Regular Choice which is made of an Ecclesiastical person to succeed in the office and dignity of Bishop in and of that Diocess whose See at the time of such Election is vacant This Election referring to an Episcopacy or the choice of a new Bishop in a vacant See is done by a Dean and Chapter but there are also other Elections Ecclesiastical relating to a Regular choice of other persons to other Offices and Dignities in the Church subordinate to the former but here it is specially meant of such an Election or choice of a new Bishop as is precedent to Confirmation Consecration and Investure or Instalment being made as aforesaid by the Dean and Chapter of a Cathedral Church by vertue of the Kings License and Letters Missive according to his Majesties nomination and pleasure contained in such Letters Missive in pursuance of such License to Elect under the Great Seal of England which Election being made accordingly the Dean and Chapter are to return a Certificate thereof under their Common Seal unto his Majesty This Election alone and of it self be it to an Archbishoprick or Bishoprick if the person Elected were before the Parson or Vicar of any Church Presentative or Dean of any Cathedral or held any other Episcopal Dignity doth not ipso facto make void in Law such former Benefice or Dignity or Deanry because he is not compleat and absolute Bishop meerly by such Election but only Bishop Elect And an Election only of such one to a Bishoprick who had before a Benefice with Cure or any other Ecclesiastical Dignity or promotion doth not make a Cession thereof And it hath been adjudged that a Commendam retinere made to such a person of such a Parsonage Deanry or other dignity Ecclesiastical which the said Parson had before his Election to the Bishoprick is yet good to him notwithstanding such Election and so remains good to him until his Consecration 3. Confirmation hath various senses according to the different Acceptation of the word but here it is mainly intended for that which in order to an Investure of a Bishop is done by the Archbishop or Metropolitan of that Province in which a Bishoprick is void and unto which a new Bishop is to be Invested with such usual Benedictions and Ceremonies as are requisite to the same Note That before an Archbishop or other Bishop is Confirmed Consecrated or Invested he must take the Oath of Fealty unto the Kings Majesty only after which the King under his Great Seal doth signifie his Election to one Archbishop and two other Bishops otherwise unto four Bishops within his Majesties Dominions thereby requiring them to Confirm his Election and to Consecrate and Invest the person Elected After which Confirmation and Consecration he is compleat Bishop to all intents and purposes as well to Temporalties as Spiritualties And now he hath plenam potestatem tam Jurisdictionis quam Ordinis and may therefore after his Consecration certifie an Excommengment and upon his Confirmation the power of the Guardian of the Spiritualties doth cease and a Writ for Admission of a Clerk to a Benefice awarded Episcopo Electo Confirmato hath been held to be good Likewise the King may by his Letters Patents after such Confirmation and before Consecration grant unto such Bishop his Temporalties which Grant from his Majesty is held to be potius de gratia quam de jure but if the Bishop of one Diocess be translated to a Bishoprick in another there needs no new Confirmation of him In the Canon de Confirmatione Episcoporum of Othobon's Constitutions it is Ordained in haec verba viz. Vt cujus Electionis Episcopalis Confirmatio postulatur inter caetera super quibus Inquisitio Examinatio praecedere debet Secundum Canonum Instituta illud exactissime inquiratur utrum plura Beneficia cum animarum cura qui Electus est antequam eligeretur habuerit Et si habuisse inveniatur an cum eo super hoc fuerit dispensatum Et an Dispensatio si quam exhibuerit vera sit ad omnia beneficia quae obtinuit extendatur Et si in aliquo Praemissorum is ad quem Confirmatio spectat Electam deficere sua discussione compererit eidem nullatenus munus Confirmationis impendat 4. There is also Confirmation of another kind and far remote in sense from the former not of any Ecclesiastical consideration nor of any Affinity with the other otherwise than Nominal and that is the ratifying or confirming of an Office or an estate in a Place or Office to one who hath or formerly had the possession thereof by a good Title but voidable though not actually and at present void To explain this A Bishop grants his Chancellorship by Patent to one for term of his Natural life this Grant is good to the Patentee and not in it self void yet upon the Bishops death it is voidable unless it be corroborated and ratified by the Confirmation of the Dean and Chapter This is not the Confirmation here intended but the Confirmation of the Election of a new Bishop in order to his Consecration and Investure which though heretofore was by the Bishop of Rome when he claimed a Spiritual Jurisdiction in this Realm yet now since the Stat. of 25 H. 8. c. 20. the same is at his Majesties Command performed by the Archbishop or Metropolitan of the Province wherein such Bishoprick is void and two other Bishops otherwise by four such Bishops within his Majesties Dominions as to whom under his Broad Seal he shall signifie such Election commanding them to Confirm the same as also to Consecrate and Invest the person whose Election to the Bishoprick is so Confirmed as aforesaid 5. The Confirmation of the Election of Bishops to vacant Sees according to the Canon Law and as practised in such Kingdoms beyond Sea where the Pope doth claim and exercise a Spiritual Jurisdiction is as to the mode and solemnity thereof quite another thing to what the practice is with us in this Realm 6. In France though the Nomination of a Bishop to succeed in a vacant See belongs to the French King yet if he doth not Nominate within Six or Nine months next after the death of the former Bishop Jus devolutum est ad Papam if a Bishoprick be there void be it quomodocunque whether by Cession or otherwise the Law speaks indefinitely in that case the King shall Nominate in France who shall be the new Bishop but then he must Nominate within Six or Nine months which being Elapsed and no Nomination he cannot afterwards Nominate Nam jus sit ad Papam devâ—lutum nec poterit purgare moram For the Law in that Case and in that Kingdom is that
Nominatione non facta intra Sex menses devolvitur Nominatio plena Dispositio Episcopatus ad Papam As also appears in that remarkable Case controverted touching the Confirmation of the Election Ad Episcopatum Appamiarum For upon the death of Cardinal de Albret An. 1520. 10. Dec. that Bishoprick became void whereupon the Canons of that Church convened and proceeded to the Election of a new Bishop and chose D. Bernard de Lordat who being elected applied himself Archiepiscopo Tholosano tanquam suo Metropolitano saltem Vicariis suis for the Confirmation of his Election which was done accordingly to which Confirmation the Procurator Regius was not called who appealed from the said Election and Confirmation alledging that the Nomination to the Bishoprick belonged to the King who Nominated D. John de Puis to the Pope whereupon the Pope granted the said Bishoprick to the said John de Puis who by the Bulls and Proxies of the Pope took possession thereof From all which Appeal was again afterwards in Supremam Curiam between De 〈◊〉 and Lordat but De Puis obtaining another Bishoprick the Process on the Appeal was Extinct and Lordat by a Definitive had the Possession of the said Bishoprick Confirmed to him CHAP. VI. Of Consecration 1. What Consecration signifies the Ancient Rites and Ceremonies thereof under the Law who they were to whom it belonged 2. Consecration as specially Applicable to Bishops 3. An Ancient Canon touching the Consecration of Churches 4. The Form of Consecration of Churches by the Justinian Law the Rites and Ceremonies therein used by the Greek and Latin Churches 5. Consecration of Bishops how necessary by the Imperial Law Consonant to the practice of the Greek and Latin Churches 6. Consecration of Bishops is Character Indelebilis at the Common Law 7. Who first Consecrated Churches who first took the style of Pope The Original of Godfathers and Godmothers in Baptism 8. In case of Translations of Bishops no need of new Consecrations Requisites to Creation and Translation of Bishops according to the Common Law of England 1. CONSECRATION here chiefly refers either to Bishops or Churches The Civil as well as Canon Law takes notice of both It signifies a Dedication to God Justinian in his Novel's makes use of the word thereby signifying an Imposition of hands For in this manner says that Book of great Antiquity entituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 began Bishops to be Consecrated It is a kind of Separation of persons Ecâ—csiastical from the Laity and of things Sacred from Prophane for the especial use and service of God The word in the Hebrew signifies a Filling of the hand thereby intimating that under the Law in the Consecration of any there was a giving them or Putting into their hands things to offer whereby they were admitted to their Priestly Office In this Consecration the holy Unction was used or the holy Oyl or holy Ointment which was not to be applied to any Prophane or Civil use but to be appropiated to the Sons of Aaron only whereas Kings were and are to be Anointed that is to be understood as by especial command from God as an Exception to the Sacerdotal practice and as a Consecrating them to the Government in relation whereto a King is a Mixt person under a double capacity Ecclesiastical and Civil as next under God the Supream in Church and State within his own Dominions And although under the Levitical Law there was an Anointing Oyl common to the High Priest with the Inferiour Priests yet the High Priest had a Consecration peculiar to himself which was by the pouring out the precious Oyntment upon his head In imitation whereof are Kings at this day anointed to the Regal Authority 2. The import of this word Consecration as practicable in all Ages specially refers to Archbishops and Bishops and with us consists in certain Benedictions and Ceremonies peculiarly requisite thereunto And when after Election and Confirmation the person is Consecrated and Invested he is then compleat Bishop as well to Temporalties as Spiritualties and then the power of the Guardian of the Spiritualties doth cease Being Consecrated he may confer Holy Orders upon others and may Consecrate Churches and Chappels which before he could not Anselm Archbishop of Canterbury deprived divers Prelates for receiving Investure of King H. 1. but after they were restored ex gratia Speed 436. The Roman Synod made a Cannon that Investure belongs to the Pope yet H. 1. used to give Investure as he did to Ralph Archbishop of Canterbury Sp. 440. b. 3. Touching the Consecration of Churches the Learned Sir H. Spelman makes mention of a very Ancient Canon made by the Synod held at Celichyth in the year 816. under Wulfred Archbishop of Canterbury and President of the said Synod Kenulph King of Morcia being threat also personally present The Canon is to this purpose viz. Wherever a Church is built or erected let it be Sanctified by the Bishop of the proper Diocess Let it have a Benediction from himself and be sprinkled with Holy Water and so be made a compleat Church in such manner as is prescribed in the Ministerial Book Afterwards let the Eucharist which is Consecrated by the same Bishop be together with other Reliques reposited and laid up in a Chest and kept and preserved in the same Church And we Ordain and Command that every Bishop take care that the Saints to whom their Churches are dedicated respectively be painted on the Church-walls or in Tables or on the Altars 4. The Emperour Justinian in his care of the Church hath prescirbed a Form of Consecration thereof in this manner viz. his Law is That none shall presume to erect a Church until the Bishop of the Diocess hath been first acquainted therewith and shall come the lift up his hands to Heaven and Consecrate the place to God by Prayer and erect the Symbole of our Salvation viz. the venerable and truly precioas Rood Likewise among other Ceremonies of Consecrating Churches the laying of the first Stone was of Ancient use in the Greek Church as may be observed out of their Euchologue where it is said That the Bishop after some other Rites performed standing in the place where the Holy Altar shall be set saith certain Prayers which being ended he giveth tho Ite Missa est and then taketh up one of the Stones and having cut a Cross upon it himself with his own hands layeth it upon the Groundwork as the first Foundation-stone then be pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and so the Workmen begin the Building The like Ceremonies are used in the Latin Church at this day at the Consecration of Churches as appears by their Pontificale There is this further touching the Consecration of Churches in the Euchologue of the Greek Church That the Bishop having on his Formilities fumeth the Ground-work or Foundation with his Iacense Circular-wise then the Singing-men say
a kind of Collect for the Saint to whose Name the Church is Dedicated and some other Services as the Chaunter shall appoint So that although the Patron might chuse the Ground yet the Prelate was to come and Consecrate it the Patron might bring the Stones but the Bishop laid the Foundation the Workmen might with the Materials make a House but the Bishop by Consecration made it a Church It was but the dead body of a Temple till it received the being of a Church by the influence of the Diocesan Thence it was that the priviledge of a new Church followed not the Building but the Consecration thereof as was well observed by that Devout and Learned King Alured in the fifth Canon of his Ecclesiastical Laws where he saith That if a man pursued by his Enemy flie to the Temple no man shall thence take him away for the space of seven days which Law was yet made under a Caution That this freedom shall not be granted to any Church but such as shall be Consecrated by the Bishop 5. Consecration relating to the person office and dignity of a Bishop as in the former part of this Chapter was by the Imperial Law so necessary to the making him a Bishop compleat as that without it his Election and Confirmation would not have entituled him to any Church that should be new erected within his Diocess whereunto he being Consecrated had a right and Title as is evident not only by the Emperours Novel but also more peculiarly acknowledged by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the setting up of the Cross behind the Altar when he made the Consecration Thus the Eucholgue for the Greek Church The like also is observed in the Latin where the Ceremonies are more tedious and elaborate By the setting up of the said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Right of the new Church was conveyed to the Patriarch or Bishop as by an especial Title and that not only by the Euchologue in the Greek but also by the Emperour 's Novel in the Latin Church Concerning which Right and the Conveyance thereof by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Observable to this purpose is that Synodical Sentence given by Germanus Patriarch of Constantinople against John Archbishop of Lepanto touching certain Episcopal Monasteries whereon he had illegally fixed his Cross under pretence of a Right to the same 6. This Consecration specially as it refers to Bishops is Character indelebilis insomuch that although it should so happen that for some just cause he should be deposed or removed from the See or suspended ab Officio Beneficio both from his Spiritual Jurisdiction as to the exercise and execution thereof as also from the Temporalties and profits of the Bishoprick yet he still retains the Title of a Bishop for that it is supposed the Order it self cannot absolutely be taken from him King H. 1. banished Thurstan Archbishop of York for five years for receiving Consecration from the Pope Speed 440. b. 458. b. 7. It appears by good Chronology that the first that ever Consecrated Churches was Euginus who was a Greek and Priest of Rome and was the first that ever styled himself Pope An. 154. who wrote de Trinitate Vnitate Dei. He was the first that Decreed that Churches should be Consecrated with the consent of the Metropolitan or Bishop and that there should be one God-father and one Godmother at Baptism 8. In a Case of Translation the Bishop need not to be Consecrated de Novo as in case of Creation Anciently and according to the Canon Law and where the Pope's Spiritual power and authority was in force Bishops were not so much by Election as by Postulation and then the saying was Electus Postulando Postulatus obligando and in that case the Elected was a Bishop presently without either Confirmation or Consecration only by the Assent of the Superiour Before Consecration the Bishop hath not actual possession although he hath a Freehold in Law after Consecration But in case of Translation there is not any new Election nor may the Dean and Chapter pray a Congé d'Estire but they signifie to the King how their Bishoprick is void ideo humilime Postulamus Humbricensem Episcopum fore Episcopum nostrum and that is called Postulation and then if the King grant it he is the Bishop Trin. 21 Jac. B. R. Sir Jo. Vaughan's Case vers Ascough Roll. Rep. Postulatio est alicujus personae ad dignitatem vel Societatem Fraternam Canonica facta vocatio vel est personae quae eligi non potest ad eligendum petitio Cap. innotuit § habito de Elect. The Bishop of St. P. was chosen Bishop of Trevers and had the assent of the Pope and when he came there he found another in possession whereupon he would have returned to his former Bishoprick but could not because it was void before by the consent of the Superiour And in the Case of Evans and Ascough it was said That a Bishop hath been Summoned to Parliament before by Confirmation but as Jones there said That was after his Possessions or Temporalties were restored to him And Caltheep there said That in the Case of Translation of a Bishop there are five things to be performed 1. The Chapters Intimation of the death of their Bishop praying Congé d'Estire 2. Congé al eux d'Estire 3. A Certificate of the Election 4. The Assent of the Bishop and the King 5. The Writ to the Archbishop to Confirm and Install him because in such case of Translation he shall not be Consecrated de Novo as aforesaid But Consecration is necessary to the making of him a Bishop who was none before and is the fourth Act in order to a Bishop according to the enumeration of these steps and degrees thereunto which in the said case of Evans and Ascough is mentioned by Whitlock where he faith That in the making of a Bishop when a Bishoprick is void the course is 1. To obtain a Congé d'Estire 2. The Kings Letters Missive whom they shall abuse 3. Vpon the Election three Instruments thereof one whereof to the party Elected another to the Archbishop a third to the King certifying him of the Election and then there is an act of Assent to the Election which cannot be without his Assent 4. The Kings Writ to the Archbishop to Consecrate and Install the person Elected 5. Then the Archbishop issues forth a general Citation and therein doth prefix a certain day for the Confirmation which is done accordingly and then be is Consecrated Then the new Bishop swears Fealty to the King which being done the King orders him his Temporalties so that there are three principal Acts required to the making of a Bishop The Election is as the Sollicitation the Confirmation is the Contract the Consecration is the Consummation of the Marriage Answerable whereunto said Doderidge in the Case aforesaid are the Acts of making a Parson As 1. Presentation whereto
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
verb. Beneficiati 3. As there are two Foundations of Cathedral Churches in England the Old and the New the New being those which King Hen. 8. upon the suppression of Abbies transformed from Abbot or Prior and Convent to Dean and Chapter So there are two ways or means of Creating these Deans for those of the old Foundation were raised to their Dignity much like Bishops the King first issuing and granting his Congé d'Eslire to the Chapter the Chapter thereupon making their Election the King then yielding his Royal Assent and the Bishop Confirming him and giving his Mandate to install him But those of the New Foundation are by a much shorter course install'd by vertue of the Kings Letters Patents without either Election or Confirmation Deans of the Old Foundation before the suppression of Monasteries arrive to their Dignities much like Bishops But Deans of the New Foundations upon suppression of Abbies or Priories transformed by H. 8. into Dean and Chapter are by a shorter course Installed by vertue of the Kings Lett. Pat. Without Election or Confirmation it was said by Hobart in Briggs Case That a Dean and Chapter are a Body Spiritual and annexed to the Bishop throughout all England Briggs C. in Winch. Rep. The same word is also applied to divers that are the Chief of certain peculiar Churches or Chappels as the Dean of his Majesties Chappel the Dean of the Arches the Dean of St. George's Chappel in Windsor c. Nec Collogia alicui praefecti nec Jurisdictione ulla donati Nomine tamen velut honocis gratia Insignes says the Learned Spelman 4. Each Archbishop and every Bishop hath a Dean and Chapter and whereas it was formerly said That the Civil and Canon Laws do chiefly take notice but of three sorts of Deans it is manifest that there are four sorts of Deans or Deanaries whereof the Laws of this Kingdom do take knowledge The first is a Dean who hath a Chapter consisting of Canons and Prebendaries as aforesaid subordinate to the Bishop as a Council assistant to him in matters Spiritual relating to Religion and in matters Temporal relating to the Temporalties of his Bishoprick The second is a Dean who hath no Chapter Presentative having Cure of Souls he hath a Peculiar and a Court with Ecclesiastical Jurisdiction therein he is not subject to the Visitation of the Ordinary Such is thè Dean of Battel in Sussex a Deanary Founded by William the Canquerour in memory of his Conquest who though he be Presentable to the Bishop by the Patron and admitted to the Deanary by Institution and Induction by the Bishop of Chichester yet is exempt from his Visitation The third is whose Deanary is not Presentitive but Donative nor hath he Cure of Souls but is only by Covenant or Condition he hath a Court and a Peculiar holding Plea of matters Ecclesiastical arising within his Peculiar over divers Parishes Such a Dean constituted by Commission of the Metropolitan is the Dean of the Arches the Dean of Bocking in Essex and divers others The fourth is the Rural Dean aforesaid having no absolute Judicial power in himself but is only by the direction of the Bishop or Archdeacon to order and prepare Ecclesiastical affairs within his Deanary and Precinct the power of these Rural Deans is at this day nigh extinguished by the Office of the Archdeacon and the Bishops Chancellor yet in some parts of this Realm it is still in force 5. Of these Four sorts of Deans the first as was said hath a Chapter being an Ecclesiastical Governour Secular over the Canons and Prebendaries in the Cathedral Church as the Dean of Canterbury St. Pauls c. The Patronge of all which Deanaries is in the Crown and doth not belong to any Subject Also the new Deanaries as was formerly hinted which were translated from Priories and Covents or were after the dissolution of Abbies and Monasteries Founded by King H. 8. or other Kings of this Realm are now Donative and the Deans thereof are by the Kings Letters Patents Installed but the Ancient Deans of Chapters are as Bishops by a Congé d'Eslire and are after Confirmed by the Bishop 6. The Dean end Chapter of Canterbury are during a Vacancy of that Archbishoprick Guardians of the Spiritualties to whom the Stat. of 25 H. 8. of Dispensations giveth power of Dispensation when that See is vacant The Dean and Chapter of any Cathedral make a Corporation Spiritual and at the Common Law challenges are allowed where the Issue concerns a Corporation and they to make the Pannel or where any of their Body are to go on the Jury or any of kin unto them though the Body Corporate be not directly a party to the Suit A Dean and Chapter bringing an Assize a Juror was challenged because he was Brother to one of the Prcbendaries and the challenge for that reason allowed If a Dean take an Obligation to him and his Successors it goes to his Executors which holds true also as to a Bishop Parson Vicar c. 7. A Deanary consists of Two parts viz. Officium Beneficium The Officium hath two parts the one is Dignity and Jurisdiction the other is Administration But some Promotions are meer Administrations as Prebends and Parsons which are not Dignisies because they have not Jurisdiction 11 H. 4. But an Archdeacon hath a Dignity because he hath a Jurisdiction So hath a Dean to whom Anciently according to Lindwood the Canons made their Confessions Et quod Canonici quead euram animarum subsunt Decano Lindw de Poenit. c. 1. gloss in verb. vel Decano in ver Decanum Capitulum Who ought to visit his Chapter 5. E. 3. 7. and if a Probend be made a Dean the Prebendary is void by Cossion 5 E. 2. F. Brieff 800. Also a Dean may make a Substitute as to the matters of his Jurisdiction as for Corrections or Visitations but not as for the other part viz. the Administration for which reason he cannot make a Deputy to Confirm Leases and the like So that in a Deanary Cathedral there seems to be 1 Dignity and Jurisdiction 2. Office and Administration 3. the Behefit or Profits thereof which seems very clear for that a Parson a Prebend or the like hath not Dignity but only the Office or Administration with the Profits but a Dean who hath Administration as others hath also Jurisdiction and Dignity The Law is also the same as to an Archdeacon 11 H. 4. 40. 7 H. 6. 27. 27 H. 6. 5. And a Writ brought against a Dean is good and sufficient without his proper Name because it is of it self a Name of Dignity and that a Deanary is a Dignity appears by 5 E. 3. 9. Breve 800. as aforesaid and it is an Office also for that in Ancient times a Dean took the Confessions of his Prebends as was likewise hinted before Also a Dean may by his Dignity make a Deputy to correct c.
Fee-simple may pass to them without the word Successors because in Construction of Law such Body Politick is said never to die This must be understood only in reference to their taking of the thing granted in their Politick not Natural Capacity 11. One Bishop may possibly have two Chapters and that by Union or Consolidation as in the Bishop of Waterford's Case who had the Bishoprick of Lismore and the Chapter thereof united to that of Waterford In which Case although the Chapter of Lismore only Confirmed the Grants of Lands belonging to Lismore and the Chapter of Waterford only confirmed the Grants of Lands belonging to the Bishoprick of Waterford yet because the Union there was not extant the Judges held the Confirmation in manner aforesaid to be good but otherwise all the Judges held that both Chapters ought to have Confirmed For it seems if a Bishop hath two Chapters both must Confirm his Leases 12. A Parsonage in the Diocess of W. is annexed to a Prebend in S. the Prebend makes a Lease for years which is Confirmed by the Bishop and Dean and Chapter of S. It was held by the Court to be good without the Confirmation of the Bishop of W. in whose Diocess it is In Eyre's Case it was resolved That Chapters are not of a capacity to take by Purchase or Gift without the Dean who is their Head And in the Case of Eaton-Colledge where a Lease was made by the Dean and Chapter of the Colledge of Eaton whereas they were incorporated by the Name of the Dean and Chapter of the Colledge of St. Maries of Eaton Resolved that the Lease was void for the Misnosiner Yet whereas the Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free-Chappel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majestie 's Free-Chappel of the Castle of Windsor in the County of Berks Resolved the Lease was good For although the King in the Act of Parliament calls it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Likewise whereas Christs-Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon and they made a Lease by the Name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon and the Liberties de Academia did extend further than the Liberties of the City yet it was adjudged a good Lease because the substance of the Corporation was inserted in the words of the Lease CHAP. VIII Of Archdeacons 1. What an Archdeacon is his Office and Jurisdiction 2. The several kinds of Archdeaconries and how many in England 3. Whence the Archdeacons power is derived and whether a Quare Impedit doth lie of it or not 4. In what case Action lies against an Archdeacon for refusing to give Induction to a Clerk Instituted by the Bishop 5. Archdeaconry not comprized under the notion of a Benefice with Cure of Souls 6. Process of Quorum Nomina prohibited by the Canon to be issued by any Archdeacon 7. How often an Archdeacon may have his Visitation and what his Office or Power therein is 8. How a person ought to be qualified that may be an Archdeacon It is an Ecclesiastical Dignity 9. Cardinal Otho's Constitution touching the Archdeacons government in his Visitations 10. How Archdeacons are distinguished at the Canon Law 11. Conformity thereto in the practice of the Common Law 12. A Case at Common Law touching a Lease for years of a Glebe made by an Archdeacon 13. The same Case somewhat otherwise reported 14 Whether a Quare Impedit lies of an Archdeaconry 1. ARCHDEACON from archos Princeps or Chief and Diaconos Deacon that is the first or chief of the Deacons Sum. Host de Offic. Archid. c. 1. de Scrut in Ord. fac being according to the Canon Law such as hath obtained a Dignity in a Cathedral Church to have the Priority among the Deacons and first in Jurisdiction next after the Bishop Sum. Host ibid. For as of Common Right all Ecclesiastical matters within the Diocess appertain to the cognizance of the Bishop so under him to the Archdeacon excepting only such things as by Law are specially prohibited And therefore is said to be dignified with this Title for that in many things he doth supply the room of the Bishop to whom he is in precedency to others subservient and unto whom his service chiefly relates Every Bishop be it Archbishop or other hath under him an Archdeacon for the better discharge of his Cure He hath Jurisdiction of Common right which may vary according to Circumstances and the Custome of the place and therefore in some cases it is Jurisdictio Ordinaria in others it is Delegata And although regularly as such he doth not exercise any Jurisdiction within the Church it self yet it cannot be denied but that an Archdeaconry is an Ecclesiastical Dignity Fran. de Aret. in Concil 23. His Office and Jurisdiction by the Canon Law is of a far larger extent than is now practicable with us otherwise we should not there find him so frequently styled Oculus Episcopi for that he is by the very Law the Bishops Vicar in several respects and therefore may where the Bishop himself conveniently cannot keep the Triennial Visitations or not oftner than once a year save where emergent occasions do require it oftner He hath also under the Bishop the power of Examination of Clerks to be Ordained as also of Institution and Induction likewise of Excommunication Injunction of Penance Suspension Correction Dispensations of hearing determining and reconciling of Differences among the Clergy as also of enquiring into inspecting and reforming Abuses and Irregularities of the Clergy with a power over the Sub-deacons and a charge of the Parochial Churches within the Diocess In a word according to the practice of and the latitude given by the Canon Law to supply the Bishops room and as the words of that Law are in omnibus vicem Episcopi gerere Synt. jur l. 15. cap. 20. de Archidiacono 2. The Diocesses within this Realm of England are divided into several Archdeaconries they being more or less in a Diocess according to the extent thereof respectively and in all amounting to the number of Threescore And they divided again into Deanaries which also are subdivided into Parishes Towns and Hamlets Of these Archdeaconries some are by Prescription some by Law and some by Covenant Which difference hath this Operation in Law That the Jurisdiction of an Archdeaconry by Prescription or de jure is exclusive to the Jurisdiction of the Bishop insomuch that a Prohibition lies for such Archdeacon against the Bishop if he intermeddle Juridically with any matters or things within such Archdeaconries
Otherwise it is where the Archdearonry is only by Contract or Covenant made between the Bishop and the Archdeacon for in that case if the Bishop so intermeddle within the Jurisdiction of such Archdeacon or hold Plea within the same he can have but an Action of Covenant against the Bishop and no Prohibition lies in that case The Cognizance which the Archdeacon hath is of matters meerly Ecclesiastical to which end he or his Commissary may hold his Court where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry and from him the Appeal is to the Diocesan 3. An Archdeaconryship being only matter of Function and as supposed not properly Local nor any Indenture made of it it hath been some question heretofore whether a Quare Impedit doth lie of it or not But it was held in the Affirmative for that an Archdeacon hath Locum in choro The power of an Archdeacon was derived from the Bishop and to him he is subordinate To which purpose the opinion of the Court in Hutton's Case upon a Quare Impedit was That if a Suit be before an Archdeacon whereof by the Statute of 23 H. 8. the Ordinary may license the Suit to a higher Court that the Archdeacon cannot in such case balk his Ordinary and send the Cause immediately into the Arches for he hath no power to give a Court but to remit his own Court and to leave it to the next for since his power was derived from the Bishop to whom he is subordinate he must yield it to him of whom he received it and it was said in that Case that so it had been ruled heretofore 4. If after the Clerk hath been presented by the Patron and Admitted and Instituted by the Bishop the Archdeacon shall refuse to Induct him into the Benefice an Action upon the Case lieth for the Clerk against the Archdeacon He hath power to keep a Court which is called the Court of the Archdeacon or his Commissary And this Court is to be holden where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry And from him the Appeal is to the Diocesan 5. Although by the Canon Law if one having a Benefice with Cure of Souls accepts an Archdeaconry the Archdeaconry is void yet it is conceived that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reason of a Proviso there viz. Provided that no Deanary Archdeaconry c. be taken or comprehended under the Name of a Benefice having Cure of Souls in any Article above-specified and to this Opinion did Wray and the other Justices incline in Vnderhill's Case And indeed an Archdeaconry by the express Letter of that Statute is exempt from being comprehended under the name of a Benefice with Cure for the words are That no Deanary Archdeaconry Chancellorship Treasurership Chantership or Prebend in any Cathedral or Collegiate Church nor Parsonage that hath a Vicar endowed nor any Benefice perpetually Appropriate shall be taken or comprehended under the name of a Benefice having Cure of Souls 6. By the Ecclesiastical Constitutions and Canons of the Church of England no Archdeacon nor indeed any other Ecclesiastical Judge may suffer any general Process of Quorum Nomina to issue out of his Court Except the Names of those to be cited be first expresly entered by the Register or his Deputy under such Process and both Process and Names first subscribed by such Archdeacon or other Ecclesiastical Judge or his Deputy with his Seal thereto affixed And in places where both the Bishop and Archdeacon do by Prescription or Composition visit at several times in one and the same year the Archdeacon or his Official shall within one month next after the Visitation ended that year and the Presentments received certifie under his hand and Seal to the Bishop or his Chancellor the Names and Crimes of all such as are presented in his said Visitation to the end the Chancellor may not Convent the same person for the same Crime for which he is presented to the Archdeacon which course the Chancellor is in like manner to observe in reference to the Archdeacon after the Bishops Visitation ended The which was Ordained to prevent the Prosecution of the same party for the same fault in divers Ecclesiastical Courts And in cases of remitting Causes from the Inferiour Judge the Archdeacon cannot remit the Cause to the Archbishop but he must remit it to his Bishop and he to the Archbishop Trin. 11 Jac. 7. The Archdeacon within the Jurisdiction of his Archdeaconry may by vertue of his Office have his Visitation if he so please or need shall require once every year but of necessity he is to have his Triennial Visitation Lindw de Offic. Archid. c. 1. verb. Visitatione gloss But whether of Common right and by the Jus Commune the Archdeacon may Visit within the Jurisdiction of his Archdeaconry is some question yet resolved by distinguishing whether the Visitation be made per modum Serutationis simplicis by the Archdeacon as the Bishops Vicar and so he may Visit of Common Right but if in such Enquiries he take upon him nomine suo proprio to correct Faults other than such small ones as wherein Custome may warrant him in such case it is held that he hath not power of Visitation de jure communi Lindw ibid. And in all such things as belong to his Visitation he hath Jurisdiction and by Custome over Lay-persons as well as over the Clergy It seems therefore he may do all such things as without the doing and dispatch whereof his Jurisdiction could not clearly appear L. cui Jurisdictio ff de Jurisd om Jud. and therefore wherever he may take cognizance of a matter there he may also give sentence and condemn Extr. de Caus Poss propr c. cum Super. de Offic. Deleg c. ex Literis which is supposed to hold true by Custome and inasmuch as the cognizance and reformation of such matters do belong to the Ecclesiastical Court whence it is that an Archdeacon may impose a penalty on Lay-men for the not repairing their Parish-Church within his Jurisdiction Extr. eod c. ult Extr. de Offic. Ord. c. 1. Lindw ubi supr verb. Imperitiam For it is expresly enjoyned and ordained That Archdeacons and their Officials shall at their Visitation of Churches take the condition of the Fabrick thereof into special consideration specially of the Chancel and in case there be need of Reparations shall set or fix a time within which such Reparations shall be finished which time is likewise to be set under a certain penalty Lindw de Offic. Archidiac c. Archidiaconi 8. By the Canon Law a man cannot be an Archdeacon under the age of 25 years Can. Nullus in propositum 60 Dist And by the Council of Trent he ought to
be a Licentiate in Law or Divinity Cons Trid. 8. Cessio de Reform general Can. 12. They are called the Chief of the Deacons C. 1. de Scrutin in Ord. faciend in whom there is an Ecclesiastical Dignity inherent jure Communi And in some places they have this Dignity sine Officio for Innocentius observes That in Ecclesia Parmensi Archidiaconus nullum exercet Officium nihilominus dignitatem habet Innocent in c. de multa de Praebend But regularly according to the Canon Law Archdeacons as to their Dignity Office and Degree are to be reputed according to the Law Usage and Custome of their own Church and Chapter Hostiens Sum. de Offic. Archid. The Archdeacon is Oculus Episcopi and ipso jure his Vicar in Visitations Corrections and Dispensations in matters Ecclesiastical within his Jurisdiction he hath power of reforming the Clergy of examining and presenting to the Bishop such as are to be Ordained and of putting into possession such as are Presented Instituted and Inducted into Ecclesiastical Benefices 9. Cardinal Otho in his Canon de Archidiaconis hath Ordained That all Archdeacons do prudently and faithfully visit the Churches within their respective Archdeaconries as touching the Sacred Vessels and Vestments thereof and generally to enquire into the Temporalties and Spiritualties belonging to the same and that they endeavour to amend what they find amiss Also that they grieve not the Churches with superfluous charges or expences but require only moderate procurations in their Visitations wherein they may not presume to receive money of any when Crimes are to be corrected or punished nor Sentence any unjustly on purpose to extort money from them on pain of double the Sum to pious uses at the discretion of the Bishop besides other Ecclesiastical punishment Constit Othonis de Archdiaconis 10. The Canon Law doth distinguish of Archdeacons the whole Title throughout De Offic. Archidiac regularly speaks of an Archdeacon General who hath not any Archdeaconry distinctly limited Sed tanquam Vicarius fungitur vice Episcopi Vniversaliter and doth represent the Bishop Extra de Consue non putamus Otherwise it is in him who hath a distinct Limitation of his Archdeaconry for then he hath a Jurisdiction separate from the Bishop which where it is by Custome may be prescribed Gloss in ver Visitent dict Const Otho Consonant to this seems that difference which the Judges took in the Case between Chiverton and Trudgeon wherein they held and agreed That there is a Jurisdiction of one Archdeacon and there is the Jurisdiction of another which is but a peculiar Jurisdiction for the Archdeacon is an Officer who hath a Court of his own in which he hath the Probat of Testaments de jure And Doderidge Justice said That he is a principal Officer belonging to the Bishop est quasi Oculus Episcopi but otherwise it is of one who hath but a special Jurisdiction as the Archdeacon of Richmond hath to make Institutions and so 21 H. 6. 23. the Dean of Pauls in that case hath special Authority in St. Panchridge Hill 17 Jac. B. R. Case Chiverton and Trudgeon Roll. Rep. 11. In the Case between Gastrell and Jones it was said by Ley Chief Justice That it is to be considered what Authority the Archdeacon hath in his own nature as such and what power he may have by Prescription or otherwise The Archdeacon is a Minister subordinate to the Bishop viz. Deputy and Vicar or an Officer under him for in case of Induction the Bishops Warrant is necessary to impower him to give the same He hath also Judicial power but it is not exclusive to the Episcopal Authority but the Bishop is his Superiour Both are Judges but the one subordinate to the other c. And if Sentence be given in the Archdeacons Court the Appeal thence shall not be in the Bishops Court but in the Archbishops And if a man dies Intestate having goods within the Archdeacons Jurisdiction and other Goods within the Jurisdiction of the Ordinary the Archbishop as he said shall commit the Administration to the Archdeacon 12. The Archdeacon of H. having the Parsonage of A. appropriate to it Lett the Land parcel of his Glebe for fifty years in Anno 12 Eliz. The Bishop of E. Patron of the Archdeaconry and the Dean and Chapter confirm it The Archdeacon dies another is Collated to the Archdeaconry It was the Opinion of the Justices in this Case first That the Confirmation by the Bishop was not void for that it was but an Assent only to the Lease of the Possession of the Archdeaconry and not of the Bishop and therefore not within the Statute of 1 Eliz. The second Point was Whether this Lease was void by the Statute of 13 Eliz. Quaere for not Resolved Mich. 37 38 Eliz. B. R. Sir Edw. Denny and Eakenstall 's Case Cro. par 1. 13. The same Case Reported by More An Archdeacon having a Parsonage appertaining to his Archdeaconry before the Statute of 13 Eliz. made a Lease for forty years of the Parsonage which was Confirmed after the Statute adjudged the Lease and Confirmation both good Arkingsall or Eakenstall and Denny's Case More 's Rep. 14. A Quare Impedit was brought by the Executors of J. S. for not suffering them to Present to the Archdeaconry of D. which became void in the life of the Testator and the Writ and Count both supposed a disturbance to the Testator in his life In nunc retardationem Executionis Testamenti praedict In this Case it was Resolved 1. That a Quare Impedit did lie of an Archdeaconry 2. That the Writ as brought should abate because it was in nunc retardationem which cannot be of a Disturbance in the life of the Testator But it was agreed that the Executors might have a special Action upon the Case for their Disturbance Trin. 31 Eliz. B. R. Smalwood and the Bishop of Coventry and Marshes Case Cro. par 1. CHAP. IX Of Procurations Synodals and Pentecostals 1. Procuration what whence so called and how paid 2. Whether Procurations be only due ratione Visitationis 3. Procurations Anciently paid in Victualibus and not in Money how paid to Archdeacons in Lindwoods time 4. Whether Procurations may be payable by Custome to Archdeacons sine Visitatione 5. Archdeacons to Visit personally if otherwise then how the Procurations are payable 6. Not above one Procuration to be paid how that is to be understood 7. The Number of the Visitor's Attendants by the Council of Lateran in reference to Procurations and how many an Archdeacon may have by the Canon 8. Synodals the threefold signification of that word 9. The Synodal anciently called Cathedraticum Synodaticum what the Cathedraticum was why so called the Original thereof and how it differs from Procuration 10. Pentecostal what it is when by and to whom payable the probable Original thereof 11. A remarkeble Case relating to this Subject that was Resolved and Adjudged in Ireland 1. THe
the Bishop of London Willielmus Dei gratia Rex Anglorum R. Bainardo S. de magna Villa P. de Vabines caeterisque meis Fidelibus de Essex de Hertfordshire de Middlesex Salutem Sciatis vos omnes c. In which Charter the Tenor of the foresaid Charter is recited word by word in English The like Charter he also there says is in the Book of Charters of the Archbishop of Canterbury Whereby it is most evident that the Bishops Consistories are of great Antiquity and that they were erected when Causes Ecclesiastical were removed from the Tourne which is a Court of Record holden before the Sheriff to the Consistory So that this Law made by the Conqueror seems as Mr. Blount in his Nomo-Lexiâ—on on this word well observes to give the Original of the Bishops Consistory as it now sits with us distinct and divided from the Hundred or County-Court wherewith it seems probable in the time of the Saxons to have been joyn'd 9. Lindwood in the Provincial Constitutions upon this word Consistorium quoad Episcopos puts this difference between Consistorium and Tribunal Tribunal says he est Locus in quo sedet Ordinarius inferior but Consistorium est Locus in quo sedet princeps ad Judicandum Lindw de foro Competent c. excussis in ver Consistoria Albeit according to the vulgar acceptation of these words we refer Tribunal to any place of Judicature but Consistorium to that only which is of Ecclesiastical Jurisdiction 10. This Chancellor of a Diocess as he is Oculus Episcopi ought to have an eye into all parts of the Diocess and hath immediately under the Ordinary Jurisdiction of all matters Ecclesiastical within the same not only for reformation of Manners and punishment of Enormities of a Spiritual nature by Ecclesiastical Censures but also in Causes Matrimonial and Testamentary as to the Probat of Wills and granting Letters of Administration of the Goods of a person dying Intestate where there are not Bona Notabilia In which case the Will shall be proved or Administration granted by the Prerogative of the Archbishop And wherever there is an Administration duly granted there the Administrator doth almost in all points represent the person of the Intestate as legally as any Executor can the person of his Testator Testamentarily For this Administrator in construction of the Common Law is that person to whose trust care conduct and management the Goods and Chattels Real and Personal of the Intestate are committed by the Ordinary or such other as under him is duly Authorized to grant the same But under this Notion or Appellation of Administrator neither the Civil nor the Canon Law knows any such Officer only they take notice of Administrators as Governours of Persons Places or Things Decret Can. 23. q. 5. cap. 26. Extra Com. cap. 11. And it is most probable that the Common Law might as some conceive take its light as to this Officer under this notion as now practicable with us from the Constitution of the Emperour Leo. I. 28. nulli licere C. de Episc Cler. whereby it is Ordained That the Bishop shall take care to see such Legacies duly performed as are bequeathed for the Redemption of Captives in case the Testator appoint not one to execute his Will in that particular This power given to the Ordinary of making Administrators in case of Intestation and of Authorizing them to act as Executors is very ancient by the Statute-Law And if any Ordinary Chancellor c. having power by the Act of 21 H. 8. to grant the Administration of the goods of him that dieth Intestate to the Widow or next of Kin shall take any Reward for the preferring any person before another to the Administration it is Bribery 11. A lawful Administrator may render his own Goods liable to the Intestates Debts either by a Devastavit or by a False Plea Judicially and his Executor or Administrator shall not succeed him in the Administration to his Intestate unless qualified to require Administration of both Intestates but the Administration of the first Intestates goods is de novo to be committed to his next of Kin as de bonis non Adm. And if a Stranger by any Act make himself Executor de son tort the Creditors and Legataries may not sue him as Administrator albeit it be an Administration in Fact but must sue him as Executor in his own wrong who notwithstanding is not any further liable than to the value of the Deceased's Goods as Assets in his hands But in case the Ordinary shall without granting any Letters of Administration make his Letters Ad Colligendum in that case he makes himself liable to Actions pro tanto as if himself were actually possessed of the Goods of the deceased And here Note That Funeral expences according to the degree and quality of the Deceased are to be allowed of his Goods before any debt or duty whatsoever for that is Opus pium or Charitativum 12. And as in these Consistories there is a great variety of Ecclesiastical Causes heard and determined so also the Officers belonging thereto are many and of various qualities and degrees whereof some seem to be magis principales others minus principales but others in the popular account as meer Animalia tantum Rationalia by whom they understand Apparitors who in truth are Summoners and whose Character in Law is this viz. He is that person whose employment is to serve such Processes as issue out of the Spiritual or Ecclesiastical Courts and as a Messenger to Cite Offenders and others to make their appearance therein as occasion shall require By the Statute of 21 H. 8. c. 5. as also by the 138th Canon of the Ecclesiastical Constitutions Apparitors are called Summoners or Sumners by which Canon the Abuses aud Grievances pretended to be practiced by such Summoners or Apparitors are sufficiently redressed For as the multitude of them is thereby abridged and restrained by Decreeing and Ordaining That no Bishop or Archdeacon or their Vicars or Officials or other inferiour Ordinaries shall depute or have more Apparitors to serve their Jurisdictions respectively than either they or their Predecessors were accustomed to have Thirty years before the publishing the said Ecclesiastical Constitutions So it is likewise provided by the said Canon That the said Apparitors shall by themselves faithfully execute their Offices and not by any colour or pretence whatsoever cause or suffer their Mandats to be executed by any Messengers or Substitutes unless upon some good cause to be first allowed and approved by the Ordinary of the place It is also further Provided by the said Canon That they shall not take upon them the Office of Promoters or Informers for the Court nor shall exact more or greater Fees than are prescribed by the 135th Canon of the said Ecclesiastical Constitutions And in case either the number of Apparitors deputed shall exceed the aforesaid Limitation or any of
the Bishoprick of Winchester contra novi Concilii statuta as the same Author reporteth And this because succeeding Popes had broken Pope Vrban's promise Touching the not sending of Legates into England unless the King should require it And in the time of the next succeeding King Stephen the Pope gained Appeals to the Court of Rome For in a Synod at London Conven'd by Hen. Bishop of Winchester the Pope's Legate it was Decreed That Appeals should be made from Provincial Councils to the Pope Before which time Appellationes in usu non erant saith a Monk of that time donec Henricus Winton Episcopus malo suo dum Legatus esset crudeliter intrusit Thus did the Pope usurp Three main points of Jurisdiction upon Three several Kings after the Conquest for of King William Rufus he could win nothing viz. upon the Conquerour the sending of Legates or Commissioners to hear and determine Ecclesiastical Causes Upon Hen. 1. the Donation and Investures of Bishopricks and other Benefices and upon King Stephen the Appeals to the Court of Rome And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power 2. The high Court of Convocation is called the Convocation of the Clergy and is the highest Court Ecclesiastical where the whole Clergy of both Provinces are either present in Person or by their Representatives They commonly meet and sit in Parliament-time consisting of Two parts viz. the Upper-house where the Archbishops and Bishops do sit and the Lower-house where the Inferiour Clergy do sit This Court hath the Legislative power of making Ecclesiastical Laws is commonly called a National Synod Conven'd by the King 's Writ directed to the Archbishop of each Province for summoning all Bishops Deans Archdeacons Cathedrals and Collegiate Churches assigning them the time and place in the said Writ But one Proctor sent for each Cathedral and Collegiate Church and two for the Body of the inferiour Clergy of each Diocess may suffice The higher House of Convocation or the House of Lords Spiritual for the Province of Canterbury consists of 22 Bishops whereof the Archbishop is President the Lower-house or House of Commons Spiritual consisting of all the Deans Archdeacons one Proctor for every Chapter and two for the Clergy of each Diocess in all 166 persons viz. 22 Deans 24 Prebendaries 54 Archdeacons and 44 Clerks representing the Diocesan Clergy Both Houses debate and transact only such matters as his Majesty by Commission alloweth concerning Religion and the Church All the Members of both Houses of Convocation have the same priviledges for themselves and Menial Servants as the Members of Parliament have The Archbishop of York at the same time and in the like manner holds a Convocation of all his Province at York constantly corresponding debating and concluding the same matters with the Provincial Synod of Canterbury The Antiquity of this Court of Convocation is very great for according to Beda St. Augustine An. 686. assembled in Council the Britain Bishops and held a great Synod The Clergy was never assembled or called together at a Convocation by other Authority than by the King 's Writ Vid. Parl. 18 E. 3. nu 1. Inter Leges Inae An. Dom. 727. A Convocation of the Clergy called Magna servorum Dei frequentia The Jurisdiction of the Convocation is only touching matters meerly Spiritual and Ecclesiastical wherein they proceed juxta Legem Divinam Canones Sanctae Ecclesiae The Lord Coke cites some Ancient Records to prove that the Court of Convocation did not meddle with any thing concerning the Kings Temporal Laws of the Land and thence inferrs That the Statute of 25 H. 8. cap. 19. whereby it is provided That no Canons Constitution or Ordinance should be made or put in execution within this Realm by Authority of the Convocation of the Clergy which were contrariant or repugnant to the King's Prerogative Royal or the Customes Laws and Statutes of this Realm is but declaratory of the old Common Law And by the said Act the Court of Convocation as to the making of new Canons is to have the King's License as also his Royal Assent for the putting the same in execution But towards the end of that Act there is an express Proviso that such Canons as were made before that Act which be not contrariant nor repugnant to the King's Prerogative the Laws Statutes or Customes of the Realm should be still used and executed as they were before the making of that Act. And if any Cause shall depend in contention in any Ecclesiastical Court which shall or may touch the King his Heirs or Successors the party grieved shall or may appeal to the Upper-house of Convocation within fifteen days after Sentence given Remarkable are the Constitutions of Claringdon in the time of King H. 2. occasioned by the Popes claiming Exemption of Clerks from the Secular power so contended for by Thomas Becket then Archbishop of Canterbury against the King as occasioned a convening a Common Council as well of the Bishops as of the Nobility at Claringdon in the time of H. 2. wherein they revived and re-established the Ancient Laws and Customes of the Kingdom for the Government of the Clergy and ordering of Causes Ecclesiastical The principal Heads or Articles whereof were these viz. 1 That no Bishop or Clerk should depart the Realm without the King's License and that such as obtained License should give Sureties That they should not procure any dammage to the King or Realm during their absence in Foreign parts 2 That all Bishopricks and Abbies being void should remain in the Kings hands as his own Demesns until he had chosen and appointed a Prelate thereunto and that every such Prelate should do his Homage to the King before he be admitted to the place 3 That Appeals should be made in Causes Ecclesiastical in this manner viz. From the Archdeacon to the Ordinary from the Ordinary to the Metropolitan from him to the King and no farther 4 That Peter-Pence should be paid no more to the Pope but to the King 5 That if any Clerk should commit Felony he should be hanged if Treason he should be drawn and quartered 6 That it should be adjudged High Treason to bring in Bulls of Excommunication whereby the Realm should be cursed 7 That no Decree should be brought from the Pope to be executed in England upon pain of Imprisonment and Confiscation of Goods 3. Arches or alma Curia de Arcubus so called of Bow-Church in London by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise in which Church this Court was ever wont to be held being the chief and most Ancient Court and Consistory of the Jurisdiction of the Archbishop of Canterbury which Parish of Bow together with twelve others in London whereof Bow is the chief are within the Peculiar Jurisdiction of the said Archbishop in Spiritual Causes and
And the Judgment of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose where it is recited that the Bishop of Rome had deceived and abused the Subjects of the Crown of England pretendig and perswading them That he had full power to Dispence with all human Laws Vses and Customes of all Realms in all Causes which be called Spiritual which matter hath been usurped and practised by him and his Predecessors for many years to the great derogation of the Imperial Crown of England For whereas the said Realm of England recognizing no Superiour under God but the King hath been and yet is free from subjection to any mans Laws but only to such as have been devised made and Ordained within this Realm for the weal of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty and by their own consent to be used among them and have bound themselves by long use and custome to the observance of the same not as to the observance of the Laws of any Foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally established as Laws of the same by the said sufferance consent and custome and not otherwise it standeth with natural equity and good reason that all such human Laws made within this Realm or induced into this Realm by the said Sufferance Consent and Custome should be Dispenced with abrogated amplified or diminished by the King and his Parliament or by such persons as the King and Parliament should authorize c. Vid. 21 H. 7. 4. a. where it is said That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded that the King of England and not the Pope before the making of the said Statute of Faculties might de jure Dispence with the Ecclesiastical Law in that and other cases For although many of our Ecclesiastical Laws were first devised in the Court of Rome yet they being established and confirmed in this Realm by acceptance and usage are now become English Laws and shall no more be reputed Roman Canons or Constitutions As Rebuffus speaking De Regula Cancellariae Romanae de verisimili notitia Haec Regula says he ubique in Regno Franciae est recepta est Lex Regni effecta observatur tanquam Lex Regni non tanquam Papae Regula Papa eam revocare non potest The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical For whereas the Law of the Church is That every Spiritual person is Visitable by the Ordinary King William the Conqueror by his Charter Dispenced with the exempted the Abbey of Battell from the Visitation and Jurisdiction of the Ordinary in these express words Sitque dicta Ecclesia libera quieta in perpetuum ab omni subjectione Episcoporum quarumlibet personarum dominatione sicut Ecclesia Christi Cantuariensis c. whereby he Dispences with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis Ecclesiasticae Edit 1534. where that whole Charter is recited at large The like Charter was granted to the Abbey of Abingdon by King Kenulphus 1 H. 7. 23 25. and Cawdry's Case Co. par 5. fo 10. a. So likewise every Appropriation doth comprize in it a Dispensation to the Parson Imparsonee to have and retain the Benefice in perpetuity as appears in Grendon's Case Plow Com. 503. In which Act the King by the Common Law shall be always Actor not only as Supream Patron but also as Supream Ordinary as is also observed in Grendon's Case For the King alone without the Pope may make Appropriations 7 E. 3. Fitz. Quare Impedit 19. And in the Case of Malum prohibitum and Malum in se in 11 H. 7. 12. a. it is held That the King may dispence with a Priest to hold Two Benefices and with a Bastard that he may be a Priest notwithstanding the Ecclesiastical Laws which are to the contrary And as he may dispence with those Laws so he may pardon all Offences contrary to these Laws and his Pardon is a barr to all Suits pro salute Animae or reformatione morum and all Suits ex Officio in the Ecclesiastical Court Hall's Case Coke 5. par fo 51. In all Faculties or Dispensations for the holding of Two Benefices granted at the Court of Rome there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons and of the right of the King by name express where the Patronage belonged to him otherwise the Faculty was void For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature And if such a particular Non obstante were not added in the Faculty then there was inserted another Clause viz. Dummodo Patronorum expressus accedat Consensus also by another Clause Authority was always given to the Official or Archdeacon or other Ecclesiastical Minister to put him to whom the Faculty is granted into possession of the Benefice cum acciderit And because by the Canon Law the Patron 's consent was ever requisite in a Commenda for that reason in every Faculty or License granted by the Pope to make a Permutation Union or Appropriation of Churches these words were ever added viz. Vocatis quorum interest which chiefly intends the Patron And which Union and Approbation shall not according to the Common Law be made without the Patron 's assent Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Case Plow Com. 498. a. A Faculty or Dispensation is of such force that if a Clerk be presented to a Benefice with Cure and be Admitted Instituted and Inducted into the same so that the Church is full of him if afterwards he be presented to another Benefice Incompatible or elected to a Bishoprick and before he is Instituted to the second Benefice or be created Bishop he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo that is for his life that Faculty or Dispensation shall be of such effect that the former Benefice shall not be void by acceptance of the Second or by promotion to the Bishoprick but he shall remain full and perfect Incumbent of the first Benefice during his life In the time of H. 6. when Henry Beaufort Great Uncle to the King being Bishop of Winchester was made a Cardinal and after that purchased from the Pope a Bull Declaratory that notwithstanding he were made Cardinal yet his Bishoprick of Winchester should not be void but that he might retain the same as before yet it was held That the See of Winchester was void by assuming the Cardinalship which
exempts the Bishop from the Jurisdiction of his Metropolitan And for that the Cardinal fell into a Praemunire for which he purchased his Pardon which is sound among the Charters 4 H. 6. in Archivis Turr Lond. 6 7 Eliz. Dyer 233. a. Jo. Packhurst being elected to the Bishoprick of Norwich before that he was created Bishop obtained a Faculty or Dispensation from the Archbishop of Canterbury by force of the Statute of Faculties to retain a Parsonage which he had before in Commendam for Three years viz. Ã Festo Michaelis An. Dom. 1560. usque ad idem Festum in An. 1563. Before the first Feast of St. Michael Packhurst is created Bishop and afterwards he resigned the Benefice And the Question was whether that Benefice became void by the resignation of Packhurst or by his promotion to the Bishoprick And it was adjudged That the Church became void by his Resignation Which proves That by virtue of the said Faculty or Dispensation he continued Parson until he had Resign'd Vid. N. Br. 36. h. If a Parson who hath a Faculty or Dispensation to hold his Rectory be created a Bishop and after the Patron present another Incumbent who is Instituted and Inducted now the Bishop shall have a Spoliation against that Incumbent which proves that his real possession in the Parsonage always continued by virtue of the said Faculty or Dispensation And in this Case of a Commendam in Sir Joh. Davis Reports this difference is put between a Faculty to take a Benefice and a Faculty to retain a Benefice viz. That a Faculty granted to one who is not Incumbent to Take a void Benefice is void And a Faculty to one who is Incumbent of a Benefice to Retain the same Benefice is good By virtue of these Faculties Dispensations and Provisions from the Pope Edmond the Monk of Bury who was a Minister in the Court of King Ed. 3. had many Benefices as appears in the foresaid Case of the Bishop of St. Davids 11 H. 4. And Hankford said in the same Case fo 191. a. That by virtue of such Faculty one and the same person had been Abbot of Glastenbury and Bishop also of another Church simul semel and had the Possessions and Dignity of both at the same time Likewise Hen. Chichley who was afterwards Archbishop of Canterbury being a Prebend in the Cathedral Church of Sarum was elected Bishop of St. Davids and before his Consecration the Pope reciting by his Bull that he was elected Bishop of St. Davids granted him a Faculty and power to hold and enjoy all his other Benefices till the Pope should otherwise order c. Vid. Nov. Decis Rot. 331. And that these Faculties or Dispensations to hold Benefices in Commendam were granted in the Court of Rome in the time of King H. 5. appears in Lindw de Praeb c. Audistis ver Dispensatione And although in case of Hen. Beauford aforesaid it was held That the Dispensation came too late it being granted after the Bishop was created Cardinal yet afterwards in the time of King H. 8. Cardinal Wolsey having before he was created Cardinal obtained a Bull from the Pope to retain the Archbishoprick of York as perpetual Administrator and the Abbey of St. Albans in perpetuam Commendam he held both during his life by virtue of the said Faculty or Dispensation Vid. 27 H. 8. 15. b. By these Presidents and Authorities it is evident That before the making of the foresaid Statute of Faculties such Dispensations were had and obtained at the Court of Rome to hold in Commendam Ecclesiastical Benefices in England But the Truth is as in the foresaid Case de Commenda Davis Rep. such Faculties or Dispensations granted by the Pope touching Ecclesiastical Benefices in England were ever contrary to the Law of the Realm for it was a meer usurpation on the Crown of England before the Statutes made against Provisors And these Statutes were made in declaration of the Common Law in that point 12 Ed. 2. Fitz. Qua. Imp. 169. 19 Ed. 2. Eitz Qua non admisit 7. 15 Ed. 3. Fitz. Qua. Imp. 160. 21 Ed. 3. 40. 11 H. 4. 230. a. It is also meet to be known That long before King H. 8. the Statute of 16 R. 2. and divers other Laws against Provisors and Appeals to Rome and the Popes Usurpation upon the Rights of the Crown of England were made well-nigh as severe as any since The first encroachment of the Bishop of Rome upon the Liberties of the Crown of England was made in the time time of King William the Conqueror For before that time the Pope's Writ did not run in England his Bulls of Excommunication and Provision came not thither nor were any Citations or Appeals made from thence to the Court of Rome Eleutherius the Pope within less than two hundred years after Christ writes to Lucius the Brittish King and calls him God's Vicar within his Kingdom Pelagius the Monk of Bangor about An. 400. being cited to Rome refused to appear upon the Pope's Citation affirming That Britain was neither within his Diocess nor his Province And when about the year 600 Augustine the Monk was sent by Gregory the Great into England to Convert the Saxons the Brittish Bishops then in Wales regarded neither his Commission nor his Doctrine as not owing any duty to nor having any dependence on the Court of Rome but still retained their Ceremonies and Traditions which they received from the East-Church upon the first plantation of the Faith in that Island And though Ina the Saxon King gave the Peter-pence to the Pope partly as Alms and partly in recompence of a House erected in Rome for English Pilgrims yet certain it is that Alfred Aethelstane Edgar Edmond Cauutus and Edward the Confessor and other Kings of the Saxon Race gave all the Bishopricks in England per Annulum Baculum 9. In the Case of Evans against Askwith it was agreed That the nature of a Dispensation is for to derogate and make void a Statute Canon or Constitution as to that which it prohibites as to the party and it is as an Exception as to him out of the Statute or Constitution It is said that a Dispensation is Provida Relaxatio mali prohibiti necessitate vel utilitate pensata And in the same Case it was also Resolved by all the Judges That the King hath power to Dispence with Statutes and Canons in force within this Realm By the very Common Law of right it was in the King for the Canons are the Ecclesiastical Laws of the Land and do not bind except they are received in the Realm as appears by the Statute of 25 H. 8. c. 21. And by the Statute of Merton touching one born before Marriage as by the Canon yet at Common Law he is Legitimate And 10 H. 7. 12. it is said That the King may Dispence with one to hold Two Benefices and it seems the Pope
Otho's Constitutions and whatever other causes of Consolidation are asserted by the DD. may be all referr'd to one or other of the foresaid Reasons Likewise there are certain Solemnities required by the Canon Law to be used and observed in the consolidation and union of Churches and Ecclesiastical Benefices the impracticability whereof in this Realm having otherwise provided in such cases can have no such malign influence in Law as to invalidate the thing for want of some Circumstantials so long as there is a retention of the Essentials according to the Laws and Constitutions of this Kingdom Vnio facta ab Episcopo debet intervenire Consensus Capituli sui Clem. si Vna de reb Eccl. non aliend Item requiritur Consensus Patroni Clem. in agro § ad haec de Stat. Mona Item Nullum habet effectum vivente Beneficiato Card. Zab. in dict Clem. Si una c. Item Verus valor Beneficiorum Exprimi debet c. 4. In all Consolidations regularly there ought to be Causa Necessitatis vel Vtilitatis Also the just and true value of the Benefices ought to be known as well of that which is to be united as of that to which the other is unitable in order whereunto there ought to issue a Commission of Enquiry touching the said cause and value at which all persons pretending Interest are to be or may be present upon Summons or Notice thereof timely given them to that end for no Consolidation or Union of that kind ought to be made non vocatis vocandis Rebuff Resp 195. 5. This Form touching Consolidations and union of Churches and Ecclesiastical Benefices is practiced in France which though there appears nothing therein but what seems consonant to Reason yet the Statute-Laws of this Realm have herein made other provision in this matter And that which we now commonly call Consolidation the Canon Law which is best and most properly acquainted with this matter calls Vnion Touching which there are in use and practice many things in divers Nations and Countries which were Incognita to the Interpreters of that Law and not in all things consonant to each other thereby rendring this Subject the more perplexed by reason of the several modes of practice diversified according to the various Constitutions of several Nations respectively for which reason the Interpreters of the Canon Law are the less positive in reducing the state of this matter to such a point of certainty as may be said Infallible in Law only they all agree in some certain Essentials to an Union as also for the most part in this Definition thereof viz. That Vnio est Beneficiorum seu Ecclesiarum ab Episcopo vel ab alio Superiore facta annexio To which this also may be added by way of description though not by way of definition That quando fit unio Ecclesia in proprietatem concedi solet Cap. in cura de jur Patronat and it must be Vnio Beneficiorum for there cannot be an Union unless there be plura Beneficia in the case L. 1. per totum ff de Optio Legat. Also it is Beneficiorum seu Ecclesiarum because the word Benefice is in it self a general term comprehending all Benefices great and small Regular and Secular Dignities and Offices C. 1. de reg jur in 6. c. extirpandae § qui vero de Praebend So that Bishopricks as well as other Benefices may be united and annexed But a Bishoprick which the Law calls culmen Dignitatis doth not regularly fall under the name or notion of Benefice c. pen. de Praebend and yet two Bishopricks may be united c. Decimas seq 16. q. 1. Rebuff de Vnion Benefic nu 4 5. 6. This Consolidation or Union at the Canon Law is either Perpetual or Temporal if Perpetual then it must be so expressed in the Union that in perpetuum univimus c. exposuisti de Praeb if Temporal then it is only for his life in whose favour the Vnion is made c. 1. ne Sede vacante and at his death it expires c. quoniam Abbas de Offic. Delegat But the Practice with us knows nothing of the Temporal Member of this distinction nor is the practice thereof at this day received in France Rebuff ubi supr nu 9. such Temporal Unions being only in contemplatione personae non Ecclesiae whereas the Law is Ecclesiae magis favendum est quam personae Dic. c. 1. c. requisisti de Testa Oldr. Consil 257. And where two Parochial Churches are consolidated or united that Church to which the other is united shall be the Superiour and principal the other which is united is the Inferiour and Accessory yet shall enjoy the Priviledges of that Church to which she is united c. recolentes in fin de stat Monach. Lastly The more worthy Benefice is never united to the minus digno and therefore a Parochial Church may not be united to a Chappel sed è contra Sic c. exposuisti de Praebend CHAP. XV. Of Dilapidations 1. What Dilapidation signifies how many waies it may happen the Remedies in Law in case thereof and to what Court the cognizance thereof properly belongs 2. Provision made by the Canon for prevention of Dilapidations 3. Dilapidation twofold in construction of Law An Exposition of the said Canon the Bishops power of Sequestration in case of Dilapidation 4. By whom the Body of the Church and by whom the Chancel shall be kept in repair How the charge of Repair in the case of Dilapidations shall be apportioned and what the Law in such cases where one Parish is divided into Two 5. Dilapidation of Ecclesiastical Edifices a good cause in Law of Deprivation 6. The Injunction of King Ed. 6. for prevention of Dilapidations 7. Leases made by a Parson void by Statute for Non-residence to prevent Dilapidations 8. The wasting the Woods of a Bishoprick a Dilapidation in Law such Woods being the Dower of the Church 9. A Vicar felling down Timber Trees and Wood in the Church-yard is a Dilapidation and good cause of Deprivation 1. DIlapidation is the Incumbents suffering the Chancel or other the Edifices of his Ecclesiastical Living to go to ruine or decay neglecting to repair the same It extends also to his committing or suffering to be committed any wilful Waste in or upon the Glebe-woods or other Inheritance of his Church Against which provision is made by the Provincial Constitutions whereof Sir Simon Degge takes notice in his Parsons Counsellor though in truth the Canon there provides rather as to satisfaction for than prevention of such Dilapidations Lindw c. si Rector alicujus Ecclesiae Gloss ibid. But the Canon Law is express and full in all respects relating to this implicit Sacriledge nor doth the Custome of England or the Common Law leave the Church without sufficient Remedy in this case albeit it postpones the satisfaction of dammages for Dilapidations to the payment of Debts as the Canon Law prefers it before the payment of Legacies
Sir Simon Degge in the forementioned place makes mention of the Inhibition out of Chancery to the Bishop of Durham by order of Parliament in Edward the First 's time for wasting the Woods belonging to that Bishoprick Also of the Archbishop of Dublin's being Fined three hundred Marks for disforresting a Forrest belonging to his Archbishoprick Likewise that by several Books of the Common Law a Bishop c. wasting the Lands Woods or Houses of his Church may be deposed or deprived by his Superiour And in case any Parson Vicar c. shall make any Conveyance of his Goods to defraud his Successor of his Remedy in case of Dilapidations in that case it is provided by the Stat. of 13 Eliz c. 2. that the Spiritual Court may in like manner proceed against the Grantee as otherwise it might have done against the deceased Parson's Executors or Administrators and all such Grants to defraud any person of their just actions were made void by a later Statute It is agreed That the cognizance of Dilapidations properly and naturally belongs to the Ecclesiastical Jurisdiction and no Prohibition to lie in the case or if such happen to be granted then the same to be superseded by a Consultation yet it seems Actions upon the Case grounded upon the custome of England have been brought in this case at Common Law and Dammages recovered It is also enacted by the Statute of 14 Eliz. That that Moneys recovered upon dammages for Dilapidations shall be expended in and upon the Houses c. dilapidated 2. Cardinal Othobon in his Canon De Domibus Ecclesiarum resiciendis hath constituted and ordained That all such Ecclesiastical persons as are Beneficed take special care that from time to time they sufficiently repair the Dwelling-houses and other Edifices belonging to their Benefices as oft as need shall so require unto which duty they are earnestly and frequently to be exhorted and admonish'd as well by their Diocesans as by the Archdeacons And if they shall for the space of two months next after such Monition neglect the same the Bishop of the Diocess may from thenceforth cause it to be effectually done at the Parson's charge out of the profits and fruits of his Church and Benefice taking only so much and no more as may suffice for such Repairs And the Chancels of Churches to be in like manner repair'd by those who are obliged thereto And as to Archbishops Bishops and other inferiour Prelates they are by the said Canon enjoyn'd to keep their Houses and Edifices in good and sufficient Repair sub divini Judicii attestatione Constit Othobon de dom Eccl. reâ—iâ— Sub divini Judicii attestatione h. e. damnationis aeternae in extremo Calâ—ulo glo in ver Sub divini Const Othobon de resident Archiepisc 3. By the Gloss on that Canon it is inferr'd That a Parson may be guilty of Dilapidations or of a Neglect in that kind two waies viz. either by not keeping the Edifices in good repair or by not repairing them being gone to decay That Canon chiefly refers to the Mansion-houses of all Benefices Ecclesiastical and that not only of all Parsonages and Rectories but also of all Bishopricks and of all Curates and Prebends and of all others having Ecclesiastical Livings but not specially by the words of this Canon unto their Farm-houses though they also are by the Canon Law provided for in case of Dilapidations And such as neglect the Reparations aforesaid may be accused and convicted thereof before the Diocesan who hath power to sequester the Fruits of such Benefice for the Reparations aforesaid Gloss in ver cessaverit in dict Can. such Fruits thereof being in construction of Law as it were tacitly hypothecated by a certain kind of Priviledge for such Indemnity and for that reason the Bishop in some cases may for that end sequester the same 4. And whereas in the abovesaid Canon it is said That Chancels shall be kept in repair by such as are thereunto obliged it is to be understood that that is spoken by way of allusion to the common Custome in England whereby the Body of the Church is usually repaired by the Parishioners and Chancels by the Rectors who notwithstanding ought to be at the care though not at the costs of the other also he being annually accountable to the Bishop for the same if the Bishop so please for which reason the Rector hath power to audit the Accounts of the costs and charges about the same as also what shall be given or bequeathed by way of Legacy for that end and purpose And where this custome prevails That the Parishioners shall repair the Body of the Church it is not to be understood that this is incumbent on them as a Real but as a Personal duty or burden yet every Parishioner proportionably to that quantity of Land which he holds within the Parish and number of Cattel he feeds on the same Gloss ibid. in ver ad hoc tenentur And in case one Parish be by legal Authority divided into Two in that case if such division were made by and with the consent of these Four viz. the Bishop the Patron the Parson and the Parishioners then the more Ancient Church shall not contribute to the Reparations of the New for that now they are two dictinct Parishes Gloss ibid. 5. Sir Ed. Coke in the third part of his Institutes having spoken of erecting of Houses and Building c. tells us what he finds in the Books of the Common Law and Records touching Dilapidations and decay of Buildings and having Margined as here in this Margent says That Dilapidation of Ecclesiastical Palaces Houses and Buildings is a good cause of Deprivation 6. By the Injunctions of King Ed. 6. An. 1547. to all his Clergy it is required That the Proprietors Parsons Vicars and Clarks having Churches Chappels or Mansions shall yearly bestow upon the same Mansions or Chancels of their Churches being in decay the fifth part of their Benefices till they be fully repaired and the same so repaired shall alwaies keep and maintain in good estate Consonant to which is the Thirteenth Article of Queen Elizabeths Injunctions given to all the Clergy An. 1559. 7. The Case was where the Parson made a Lease to the Plaintiff for 21 years after the Statute of 13 Eliz. of Lands usually Lett rendring the ancient Rent the Patron and Ordinary confirmed it the Lessee lett part of the term to the Defendant the Parson died the Successor entered and leased to the Defendant against whom the Lessee brought Debt upon the former Lease who pleaded the Statute of 13 Eliz. which made all Leases void where the Parson is not resident or absent for 80 daies It was Adjudged That the Lease was void by the death of the Incumbent for the Justices said The Statute doth provide against Dilapidations and for maintenance of Hospitality and therefore provided the Leases shall be void not only for Non-residence
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
it to his proper use and there was not any Endowment of the Vicarage The Jury found the Statute of 4 H. 4. of Appropriations and of 27 H. 8. which gives Priories c. to the King Whether the Appropriation were good there being no Endowment of the Vicarage And whether the Appropriation without the King's License was good was the Question Resolved That whether the Appropriation be good or not cannot now be called in question but it shall be intended to be good and have all requisite Circumstances But in this Case because the Defendant claimeth per Praesentationem Regis ratione Lapsus Whereas the King if he had any Title to Present it was Jure Coronae the Presentment of the Plaintiff was utterly void and the Plaintiff had no Title who brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes CHAP. XXI Of Commendams 1. What a Commendam is or the Legal description thereof 2. The King may dispence with the holding of divers Benefices in Commendam notwithstanding the Canon of the Lateran Council against Pluralities 3. Three Degrees of Commendams by the Canon Law 4. A description of a Semestral and Temporary Commendatory 5. The provision the Pope made in granting Commendams certain Benefices in the Church of Rome never given in Commendams 6. What the Canon Law in Commendams ad Tempus or Perpetuo 7. The grand Case of a Commendam at the Common Law between Kiffin and Ascough and therein great variety of Learning touching that Subject 8. Several Considerations in Law touching Commendams 9. An Irish Case with great variety of Learning in reference to this Subject 1. COmmendam Ecclesia Commendata is a Benefice or Ecclesiastical Living which being void is commended to the charge and care of some sufficient Clerk to be supplied until it may be conveniently provided of a Pastor And this was the Original of what we now commonly call Commendams Durand de Benefic lib. 5. cap. 7. That person to whom the Church is thus Commended hath the Fruits and Profits thereof only for a certain time whereby the nature of the Church is not changed but is as a thing deposited in his hands as it were in Trust being concredited only with the care and custody thereof which may be revoked Thus when a Parson of a Parish is made the Bishop of a Diocess there is a Cession of his Benefice by the Promotion but if the King gives him power to retain his Benefice he shall continue Parson thereof and shall be said to hold it in Commendam So that it may properly be thus defined Commenda est Ecclesiae Custodia alicui Commissa in tempus gratia evidentis necessitatis utilitatis Gloss in verb. Commendare c. Nemo deinceps de Elect. in lib. 6. Andr. in dict Gloss For hereby the Bishop commits the care and custody of a Vacant Church to some one whom he Constitutes as a general Administrator thereof Corras de Sacerd. mater p. 1. c. 6. nu 3. dict c. Nemo for Commendare in this sense is no other than Deponere l. Publius ff Depositi l. Commendare ff de verb. Sign And he to whom the same is so committed is in the Law termed Commendatarius having the custody of a Vacant Church and the Fruits thereof only for a time and the Beneficium Commendatum we call Commendam Petrus Gregorius makes this Commendam of a Church to be on a double account viz. either in utilitatem Ecclesiae or Commendatarii In the former case he says the Commenda gives no Title to the Commendatary of the Benefice but is only a Custody or Trust which may be revoked and consequently repugnant to the nature of a Benefice which is Perpetual In the other Case the Benefice is held to be a Commenda made in utilitatem Commendatarii which he may hold and possess as long as he lives Petr. Greg. de Benef. cap. 10. nu 13. 2. By a Canon of the Lateran Council no person Ecclesiastical could hold Two Benefices with Cure of Souls simul semel but by the taking of a Second the former would be void Cons Later F. N. B. 34. L. Co. par 4. 75. Lindw Consil Provin de Praebend cap. Audistis yet might the King it seems by the Common Law notwithstanding that Canon grant Dispensations to hold divers Benefices in Commendam as at this day he may notwithstanding the Stat. of 21 H. 8. For the Statute of 25 H. 8. that takes away the Popes usurped power of granting Commendams c. in this Realm doth vest it in the Crown de jure as also doth the Statute of 1 Eliz. and from and under the Crown in the Archbishop of Canterbury his Commissaries c. And as heretofore the Pope did by Usurpation in this Realm so now de jure ex Regali Authoritate may the King grant unto a Consecrated Bishop a Dispensation Recipere obtinere Beneficium cum Cura animarum and to hold the same in Commendam 3. In the Case of Colt and Glover against the Bishop of Coventry and Lichfield according to Sir Hen. Hobart Lord Chief Justice out of the Canons Commendams are said to be of Three Degrees one Semestris another Perpetua vel ad vitam a third Intermedia or Diuturna sed Limitata and sometimes called Temporaria or Temporalis vel ad certum Temporis spatium Limitata Clem. v. Extra l. 3. de Praebendis c. 2. The Commenda Semestris did arise out of natural equity that in the time of the Patrons respite given him to Present the Church should not be without a Provisional Pastor which was a Law of Necessity agreeable to the Law of Nature But after the Lapse justly incurred the Commendam is to cease or then the Ordinary may Collate The Commenda Perpetua vel ad vitam is that which cannot be for a less time than for the life of the Commendatary absolute And the Commenda Intermedia diuturna or Temporalis vel ad certum temporis spatium Limitata is when a Commenda is to a person not for his life absolutely but so long as he shall be Bishop of such a place or the like Each of which Degrees of Commendams doth refer to the Commendam obtinere capere apprehendere A Dispensation Commendam recipere which shall make a Title ought to have three Incidents 1 It ought to be Recipere convertere in usus proprios 2 It ought to be ad utilitatem Ecclesiae vel Parsonae 3 It ought to have the Assent of the Patron And he that is but mere Commendatarius is Accountable to the Ordinary Vid. Case Evans and Ascough in Latch Rep. And not to the Commendam retinere which in truth is no Commendam though commonly so called but is only a Faculty of Retention and Continuation of the Benefice in the same person and state wherein it was notwithstanding something intervening as a Bishoprick or the
ad Familiae suae sustentationem convertere possit juribus sive institutis quibuscunque in contrarium non obstantibus Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland according to the Statute of 28 H. 8. c. 16. After this viz. 20 May An. 38 Eliz. Patrick Fynne the Incumbent died whereby the said Vicarage being void and so continuing void by the space of Six months whereby the Bishop had power to Collate thereunto by Lapse the said Bishop by virtue of the said Faculty or Dispensation adeptus est occupavit retinuit the said Vicarage perpetuae Commendae titulo and took the Fruits thereof to his own use until the 13 Febr. An. 1609. on which day the Bishop died After whose death the said Cyprian Horsefall having purchased the next Avoidance of that Vicarage Presented the said Wale who was Admitted Instituted and Inducted And afterwards the King Presents one Winch who being disturbed by the said Horsefall and Wale the King brought a Quare Impedit Whether the said Bishop when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation were thereby made compleat Incumbent thereof so as the Church being full of him no Title by Lapse could devolve to the King during the life of the Bishop was the Principal point moved and debated in this Case And in the Argument of this point which was argued at the Bar first by the Counsel at Common Law and then by two Advocates well versed in the Canon Law and at the Bench by all the Justices Two things were chiefly considered by those who argued for the Kings Clerk 1 Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty 2 What effect or operation that Faculty or Dispensation shall have by the Law As to the First they held clearly for Law That a Bishop by the Ancient Ecclesiastical Law of England may not hold another Benefice with Cure in his own Diocess and if he hath such Benefice before his promotion to the Bishoprick that it becomes void when he is created a Bishop And this is the Ancient Law of England as is often said in the Bishop of St. David's Case 11 H. 4. 41 Ed. 3. 5. b. agrees therewith The Reason is for that the Bishop cannot visit himself and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9. That if a Parson be made a Dean the Parsonage becomes void for that the Dignity and the Benefice are not compatible So no Ecclesiastical person by the Ancient Canons and Councils could have Two Benefices with Cure simul semel but the first would be void by taking asecond And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 8. cap. 13. which was made in Affirmance of the Ancient Law as appears in Holland's Case Co. par 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. N. Br. 34. l. And the Text of the Canon Law which is the proper Fountain of this Learning proves it fully Decretal de Praeben Dignit c. de multa Where it is said De multa providentia fuit in Lateranensi Concilio prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum instituta c. Praesenti Decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale Beneficium habebat eo sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. And with this agrees the Text in Decret Caus 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest So that it is evident that the Bishop could not by any Law have or retain that Benefice within his Diocess without a Dispensation which is Relaxatio Juris and permits that to be done which the Law had before prohibited It is to be observed That Commenda est quaedam provisio and therefore Gomez in Reg. de Idiomate saith That Commendare est Providere quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus And by the Canon Law the Consent of the Patron is requisite where a Benefice is given in Commendam Lib. 6. Decretal c. Nemo where the Gloss saith Ad Commendam vacabitur Patronus si qui alii ex tali Commenda laeduntur Also in Constit Othob de Commendis it is said expresly That Consensus Patroni ad Commendam requiritur The Canon Law holds these Commendams as very prejudicial and that in divers respects and therefore says That Experientia docet occasione Commendarum cultum Divinum minui Curam animarum negligi hospitalitatem Consuetam debitam non servari ruinis aedificia supponi c. 6. Extra cap Pastoris And whereas it is said of a Bishop That he is to be unius uxoris vir the Canonists expound it That he shall have but one Bishoprick or only one Cure for they say that per Commondam Bigamia contrahitur in Ecclesia Therefore it was well Resolved by that good and pious Bishop who when another Benefice was offered him to hold in Commendam said Absit ut cum Sponsa habeam Concubinam But for the clearer understanding of the nature and difference of these Commendams it is further to be considered That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius and therefore Decret caus 21. q. 1. Qui plures the Gloss there saith Commendare nihil aliud est quam deponere This Commenda or Commendatio Ecclesiae is divers according to the nature of the Church and the Limitation or Continuance of the Commenda for a Commenda may be of a Church either Curatae or non Curatae and it may be either Temporanea viz. for a time certain as for Six months or Perpetua viz. during the life of the Commendatary A Church with Cure may not be given in Commendam unless upon evident necessity or the benefit of the Church viz. to supply the Cure till provision be made of a sufficient Incumbent And therefore by the Council of Lions it was provided That a Parochial Church should not be given in Commendam nisi ex evidenti necessitate vel utilitate Ecclesiae quod talis Commenda ultra semestris temporis spatium non duraret quod secus factum fuerit sit irritum ipso jure c. 6. Decretal c. Nemo But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary vel ad mensam In that sense the Canonists say That Commenda is quasi comedenda quia Ecclesiae quae
his Presentation but he may cumulando variare and so the Ordinary hath Election to Institute which of them he will but that a Spiritual Patron cannot vary at all But he said that at the Common Law it is out of question That a Patron before Institution may revoke his Presentation And if the Patron present one and the Ordinary admit him but will not give him Institution Duplex Quaerela lies against the Ordinary to enforce him to do his duty But if both Parsons claim by one Patron and the one sues a Duplex Quaerela a Prohibition lies not before Institution But Jones denied it and said That it had been Resolved to the contrary Doderidge said That in that case the Induction was pendente Lite And in Calvert's Case against Kitchin it was said that they King may revoke his Presentation and by the same reason may Present another before his Presentee is Instituted for proof whereof it was said That a Common person may recall his Presentation before the Institution c. for which was vouched the Book of 31 E. 1. tit Quare Impedit 185. the Abbot of Leicesters Case although that Dyer citing it 12 Eliz. fo 292. conceives the Book contrary but it seems to be in reason that the Law is clear That a Lay-Patron may change although that a Spiritual Patron cannot and the reason is as aforesaid because a Lay-person did not know his Sufficiency perhaps at the first but a Spiritual person by intendment may inform himself thereof well enough and therefore was vouched 18 H. 7. and 1 H. 8. Kellway's Reports which plainly proves that diversity And by the 19 Eliz. fo 360. in Coleshil's Case it is said That when the King hath Presented a Repeal by him ought not to be admitted after Institution And by Dyer 339. in Yatton's Case the King may Repeal his Presentation by a new Presentation without mention made of the former except that the Second Presentation be obtained by Fraud Also the King may Present by Paroll as was said by Sir Ed. Coke in the Lord Windsors Case and as appears by 17 Eliz. Dyer as was vouched by Bromley Baron in the foresaid Case of Calvert against Kitchin where it was said by Altham Baron That by the Kings death his Presentation determines understand it before Institution and so it is said in 34 E. 3. 8. tit Quare Impedit 11. That a Presentment made by a Bishop becomes null and void by his death And in 38 Ed. 3. 3. if a Bishop Present and die before c. the King shall Present anew 11. Nomination is a power that by virtue of a Mannor or otherwise a man hath to Nominate or Appoint a Clerk to a Patron of a Benefice by him to be Presented to the Ordinary for the same where Note 1 That it may be in right of a Mannor or otherwise 2 That the Clerk Nominated ought to be a person fit able and worthy 3 That it may be to a Parsonage Vicarage or other Spiritual promotion 4 That it ought to be to another than the Ordinary which other shall present him to the Ordinary And if one hath a Right to have the Nomination of a Clerk to a Benefice and another Disturbs him he cannot have a Quare Impedit ipsum Nominare ad Ecclesiam but the Writ shall be Quod permittat ipsum Praesentare And the Count shall be That of Right he ought to Name a Clerk to such as one who ought to Present him to the Bishop and that a Stranger doth disturb him of his Nomination and in case he doth Recover the Judgment shall be Quod Episcopus admittat Clericum ad Nominationem suam 12. If A. B. doth Grant unto J. S. That he shall Name a Clerk to him to the Church of C. when it shall become void and that A. B. shall present unto the Bishop the Clerk which J. S. shall Nominate to him in that case the Presentation is in J. S. and he shall have a Quare Impedit for all the Profit is in him and the Grant of the Nomination and Presentation is all one But if A. B. doth Grant unto J. S. That he shall Nominate to him Two Clerks whereof A. B. shall Present one in that case the Presentation is not given to J. S. the Grantee because it is in the Election of A. B. which of the Two shall have the Benefice And this was the Opinion of the Justices in Smith and Clayton's Case 13. If A. hath the Nomination to an Advowson and B. the Presentation if A. Nominates C. for his Clerk and B. that should present C. doth present D. for the Clerk A. that hath the Nomination shall have a Quare Impedit and the Writ shall be Quod permittat eum Praesentare albeit A. had but the Nomination otherwise he should be without remedy for in such cases where the party can otherwise have no Right done him the Law will admit such Writ albeit the words therein be improper And if he who had but a Nomination corruptly agree to make a Presentation or Nomination this Nomination shall be forfeited to the King within the Statute of 31 Eliz. cap. 6. as was said in Calvert's Case against Kitchin and Parkinson and as it is said in Plowden in Hare and Bickley's Case He who hath the Nomination hath the effect of the Advowson Yet as in the said Case of Calvert this diversity seems to be good That if A. hath the Presentation and B. the Nomination to a Benefice and the Presentor upon a Corrupt agreement make a Presentation unknown to the Nominator here the Nominator shall not be prejudiced within the Statute of 31 Eliz. cap. 6. 14. In Green's Case vouched by Atthowe Serjeant in the Case of the King against the Archbishop of Canterbury and one Thomas Prust upon a Quare Impedit brought by the King it is said That if the Bishop Collate before the Six months incurr the Collatee is Incumbent but the Patron may Present at any time aster for that fills the Church but not against the Patron and hinders that no Lapse may incurr to another In Sir Hen. Gawdy's Case for the Church of W. the Church there became void and within fourteen daies after the King Presented one to it jure Prerogativae the Presentee continues possession above thirty years and then the Mannor and the Advowson came to Sir Henry Gawdy the Church is void and the King Presents again and was disturbed by Sir Henry For that the King brought a Quare Impedit and Adjudged That the Presentation of the King within the Six months was not an Usurpation But if he had Presented in his own right there should have been an Usurpation When a Title by Lapse is in the King if any Present the King may remove him during his life by Quare Impedit All this appears by Baskervil's Case but if the Incumbent die the term of the King is gone and if
unless he be qualified for Plurality Or if a Dean be made a Bishop yea though a Dean or Parson in England be made a Bishop in Ireland as aforesaid his Benefice becomes void as was Resolved in Evans and Askwith's Case for that the Constitution or Council which makes it void is general and not limited to any place And so it was also Resolved 3 E. 3. Fitz. Trial and so adjudged 21 Jac. C. B. in the Case between Woodley and the Bishop of Exon and Manwaring 12. The case may so happen that albeit a man having a Benefice with Cure of Souls accept another and be Instituted and Inducted into the same yet his First Benefice shall not be void by Cession though the Benefices be incompatible though there be no Dispensation in the case and although himself be not otherwise qualified for Pluralities For it hath been Resolved That if a man having one Benefice accept another and be Instituted and Inducted into the Second and then read not his Articles that yet the First Benefice voids not by Cession because the Second is as not taken Notwithstanding it cannot be denied but that where a man having a Benefice with Cure of Souls above the value of Eight pounds per Ann. doth take another with Cure and is thereto Admitted Instituted and Inducted the First Benefice without Dispensation becomes void as in the Case of the King against George Lord Archbishop of Canterbury In which Case it was held That the Church was absolutely void in facto jure by taking of a Second Benefice and that by the express words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto jure quoad the Patron and all others Sed Q. whether void as to an Usurper for in some cases a Benefice may be void as to some persons and not void as to others As in the Case of Simony whereby as well as by Cession a Church becomes void yet in that case although it be void to all men quorum interest to the King and his Incumbent and all that claim under him and to the Parishioners to the Ordinary and to the like yet according to Sir Hen. Hobart Chief Justice it is not void to an Usurper for a man without Right cannot Present unto it as to a Church void nor the Ordinary so discharge himself if he receive the Clerk of an Usurper for he is none of them quorum interest Pasch 14 Jac. Rot. 1026. Case of Winchcombe against the Bishop of Winchester and Rich. Pulleston Hob. Rep. 13. If the Next Avoidance be granted to Three persons and after the Church become void and then Two of the Three Present the Third Grantee being a Clerk in this case the Presentation is good and the Bishop may not refuse him inasmuch as all Three were Joynt-tenants thereof by the Grant and only Two of them joyn in the Presentment for that the Third person cannot Present himself but if only one of these Three Grantees Present the Third the Bishop hath power to refuse him And if an Incumbent having the Advowson do Devise the Next Avoidance it seems it is good Trin. 13 Jac. B. R. Harris vers Austen Rol. Rep. 14. In Holland's Case it was Resolved That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure accept another with Cure the First was void but this was no Avoidance by the Common Law but by Constitution of the Pope of which the Patron might take Notice if he would and Present without Deprivation But because the Avoidance accrued by the Ecclesiastical Law no Lapse incurred without Notice as upon a Deprivation or Resignation so that the Church was void for the benefit of the Prtron not for his disadvantage But now if the First Benefice be of the value of Eight pounds per annum the Patron at his peril ought to Present for to an Avoidance by Parliament every one is party but if not of Eight pounds it is void by the Ecclesiastical Law of which he needs not take Notice 15. In a Quare Impedit The Defendant said A. was seized of the Advowson of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance and that J. S. died and made his Executor who Presented the Plantiff to the Church being void Upon Non concessit it was found That A. granted to J. S. durante vita ipsius J. S. primam proximam Advocationem and that he died before the Church became void Whether this was an absolute Grant of the Next Avoidance as is pretended was the Question And Resolved it was not but it is limited to him to Present to the Advowson if it becomes void during his life and not that otherwise it should go to his Executors and therefore it was Adjudged against the Defendant 16. The Incumbent of a Church purchased the Advowson thereof in Fee and devised that his Executor should Present after his decease and devised the Inheritance to another in Fee It was said the devise of the Next Avoidance was void because when his Will should take effect the Church was instantly void But the Court held the devise was good for the Law is so and it shall be good according to the intent of the party expressed in his will The Grant of the Next Avoidance during the Avoidance is void in Law Steephens and Clark's Case More 's Reports 17. In a Quare Impedit the Case was The Corporation of B. being seized of an Advowson granted the Next Avoidance to J. S. and afterward granted primam proximam Advocationem to the Earl of B. who granted it to the Plaintiff The Church became void J. S. Presented his Clerk who was Inducted and then the Church became void again It was Resolved that the Second Grant was void so as the Plaintiff had no Title for when he had granted primam proximam Advocationem to one he had not Authority to grant it after to another but if the First Grant had been lost so as it could not have been pleaded there perhaps the Second Grand had been good 18. In a Quare Impedit the Case was H. being Incumbent of a Church was Created a Bishop in Ireland and the Queen Presented the Defendant It was the Opinion of the Justices That this Creating of the Incumbent a Bishop in Ireland was a good cause of Avoidance and that the Queen should have it by her Prerogative But if the Queen doth not take the benefit of the First Avoidance but suffers a Stranger to Present and the Presentee dies she may not have Prerogative to Present to the Second Avoidance 19. The Next Avoidance of a Church was granted to A. and B. A. releases to B. and after the Church became void It was Adjudged in this Case That B. may Present and upon Disturbance have a Quare Impedit in his own Name
Or thus The Next Avoidance was granted to Two the one Released to the other who brought a Quare Impedit in his own Name and it was adjudged maintainable because it was before the Church was void 20. A. seized of the Mannor of D. to which an Advowson was Appendant granted the Next Avoidance to B. and D. eorum cuilibet conjunctim divisim Haered Executor Assignatis suis The Church void B. Presents D. to the Church Adjudged that the Presentment of him was good though he were one of the Grantees CHAP. XXVI Of Pluralities 1. Pluralities condemned by the Council of Lateran yet dispenc'd with by Kings and Popes 2. What in this matter the Pope anciently exercised by way of Vsurpation the King may now do de jure The difference between them in the manner how 3. What persons are qualified for granting or receiving Pluralities 4. Several Laws relating to Pluralities Dispensations and Qualifications 5. How the 8 l. annual value of a Benefice shall be understood whether as in the Kings Books or according to the true value of the Benefice 6. The Lord Hobart's Opinion touching the Statute of 21 H. 8. relating to Pluralities 7. What the Pope's Power in England was before the making of the said Statute And whether the taking of a Bishoprick in Ireland by a Dean in England makes the Deanary void by Cession 8. The Chaplains of Persons of Honour having divers Benefices shall retain them for their Lives though they be discharged of their Service 9. Whether the Ecclesiastical Court may take cognizance of Plenarty or Voidance after Induction And whether the cognizance of Cession or no Cession belongs to the Temporal or Spiritual Count. 10. Difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law 11. A Prohibition granted upon Sequestration of a Benefice by the Bishop 12. The Fifth Paragraph aforesaid Adjudged and determined 13. How the Voidance in case of Three Benefices in one person 14. Benefice not void if the King License the Incumbent to be an Incumbent and a Bishop 15. How the taking of a Second Benefice is a Voidance of the First 16. Whether so in case of a Chaplain of the King 17. Whether so in case of a Si modo or Modo sit by way of a Limitation in the Dispensation 18. Whether the word Dispensamus be necessary in the Letters of Dispensation for a Plurality 19. The Kings Retainer of a Chaplain by Word only qualifies him for a Plurality within the Statute of 21 H. 8. 20. Whether a Third Chaplain retained by a Countess Widow is qualified to purchase a Dispensation for Plurality 21. In reference to Plurality whether regard is to be had to the value mentioned in the Statute of 25 H. 8. or to the true value of the Benefice 22. Whether Admission and Iustitution makes the First Benefice void without Induction 23. Whether before the Statute of 25 H. 8. the Pope might here grant Dispensations for Pluralities 24. Whether the Retainer of a Chaplain may be good and sufficient without a Patent 25. In what case a Dispensation for Plurality may come too late though before Induction 26. Three Resolutions of Law in reference to Avoidance by reason of Plurality 1. PLurality according to the Common acceptation of the word is where one and the same person is possessed of Two or more Ecclesiastical Benefices with Cure of Souls simul semel It was long since condemned by the general Council of Lateran whereby it was Ordained That whatever Ecclesiastical person having one Benefice with Cure of Souls doth take another such shall ipso jure be deprived of the former and if he contest for the retaining thereof shall lose both Notwithstanding which Canon it was heretofore usual with the Pope to usurp a power of Dispensation in this matter the which de jure was anciently practised by Kings as Supream and as the original Donors of Benefices and Ecclesiastical Dignities witness Edmond that Monk of Bury who by virtue of such Dispensations held several Ecclesiastical Benefices at one and the same time The said Canon as to the substance thereof relating to Pluralities is now Confirmed by the Statute of 21 H. 8. 13. which limits the former Benefice with Cure of Souls to the yearly value of Eight pounds or upwards and the time of Avoidance thereof to be immediately after possession by Induction into the other with Cure of Souls with power of Presentation de novo granted to the Patron of the former Benefice and all benefit of the same to the Presentee as if the Incumbent had died or resigned Q. Whether the said yearly value of Eight pounds or above ought to be computed according to the valuation in the Kings Books as returned into the Exchequer and now used in the First-Fruits Office or according to the just and true value of the Benefice Q. likewise Whether a Parson of a Church Impropriate with a Vicar perpetually endowed accepting of a Presentation unto the Vicarage without Dispensation be a Pluralist within the Canon and Statute aforesaid The Negative is supposed to give the best Solution to the Question 2. The same power of granting Faculties Pluralities Commendams c. which anciently the Pope exercised in this Realm by Usurpation is by the Statute of 21 H. 8. cap. 13. and 1 Eliz. transferr'd unto and vested in the Crown de jure also from and under the King in the Archbishop of Canterbury and his Commissaries by Authority derived from the Crown The Pope anciently granted to Bishops after Consecration Dispensations Recipere obtinere Beneficium cum cura animarum to hold the same in Commendam the which he did in this Realm by Usurpation and which the Crown may now do de jure for the same power as aforesaid which the Pope had is by the Acts of Parliament in 25 H. 8. 1 Eliz. in the King de jure But there is a very material difference between the Dispensations anciently here granted by the Pope and those at this day by the King and Archbishop Confirmed by the Kings Letters Patents which are not good otherwise than to such as are Compleat Incumbents at the time of granting thereof whereas it was sometimes otherwise with the other whence it is observable that in Digbie's Case the Dispensation came too soon A. is Instituted and Inducted into a Benefice with Cure value Eight pounds per ann Afterwards the King presenting him to another with Cure he is Admitted and Instituted Afterwards the Archbishop of Canterbury grants him Letters of Dispensation to hold Two Benefices the King confirms the same Afterwards he is Inducted into the Second Benefice In this case the Dispensation comes too late because by the Institution into the Second Benefice the First Benefice was void by the Stat. of 21 H. 8. 3. The Acceptance of a Second Benefice with a Dispensation comes not under the notion of prohibited Pluralities in case
notwithstanding they were several Advowsons and several Quare Impedits might be brought of them and several Actions maintain'd for their several Possessions yet the Presentment of one man to the Parsonage and Vicarage was no Plurality because the Parsonage and Vicarage are but one Cure And there is a Proviso in the Statute That no Parsonage that hath a Vicar endowed shall be taken by the Name of a Benefice with Cure within the Statute as to make it a Plurality 6. The Lord Hobart in Colt and Glover's Case against the Bishop of Coventry and Lichfield is clear of Opinion That Bishopricks are not within the Law under the word Benefices in the Statute of 21 H. 8. cap. 13. So that if a Parson take a Bishoprick it avoids not the Benefice by force of this Law but by the ancient Common Law as it is holden 11 H. 4 60. But withal he holds it as clear That if a Bishop have or take two Benefices Parsonages or Vicarages with Cure either by Retainer or otherwise de novo he is directly as to these Benefices within the Law for he is to all purposes for those not a Bishop whether it be in his own Diocess or not but a Parson or Vicar and by that Name must sue and be sued and Prescribe and Claim For if any person having one Benefice with Cure c. take another c. whosoever will hold two Benefices must have such a Qualification and such a Dispensation as the Law 21 H. 8. requires Whereupon the Lord Hobart in the foresaid Case is clear of Opinion That if a man be qualified Chaplain to any Subject and then be made a Bishop his Qualification is void so as he cannot take two Benefices de novo after by force of that Qualification But if he had lawfully two Benefices before his Bishoprick he may by Dispensation of Retainer besides his former Dispensation to take two Benefices hold them with his Bishoprick And if a man being the King's Chaplain take a Bishoprick he holds that he ceaseth to be the King's Chaplain and Bishops are not in that respect Chaplains to the King within the meaning of the Statute So that the Clause of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain will not serve them In this Case of Colt c. against the Bishop of c. he is of Opinion That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Dispensation procure another with Cure to be united to it after though they make but one Benefice for this Cautel of Union is provided for by Name But of Unions before he is of another Opinion Case Colt Hob. Rep. 7. In ancient times the Pope used to grant Dispensations of the Canons in this Realm and so might the King have done The first Statute that restrain'd the power of the Pope was that of 21 H. 8. of Pluralities That the Church shall be void notwithstanding any Grant of the Pope Also the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have dispensed with a man to have twenty Benefices and so might the King The 21 H. 8. was the first Statute or Law which gave allowance for Pluralities afterwards by the 28 H. 8. the power of the Pope was given to the King But as it was said and agreed in the Case of Evans and Ascough that was not by way of Introduction but Cumulutive and by way of Exposition And by that Statute the Archbishop of Canterbury had in this matter a concurrent power with the King and Dispensation granted by the King or by the Archbishop is good Also in the said Case it was agreed by all the Justices That if a Parson or Dean in England doth take a Bishoprick in Ireland it makes the first Church void by Cession because Ireland is a Subordinate Realm to England and governed by the same Law For it was there agreed by all as well by the Justices as those of the Barr That if a Parson or Dean in England take a Bishoprick in Ireland the first Church is void by Cession Justice Whitlock gave this Reason for it Because there is but one Canon Law per totam Ecclesiam and therefore wherever the Authority of the Pope extended it self be it in one or divers Realms the taking of a Bishoprick made the Deanary or Parsonage void Nemo potest habere duas Militias nec duas Dignitates est impossibile quod unus homo potest esse in duobus locis uno tempore And 5 R. 2. F. Tryal 54. the whole Spiritual Court is but one Court which Book is very remarkable to that purpose That the Canon Law is but one Law Which Reason was also given by Justice Doderidge in the same Case and upon the same point who said That the Law of the Church of England is not the Pope's Law but that all of it is extracted out of Ancient Canons as well General as National Another Reason which he then gave was Because Ireland is a Subordinate Realm and governed by the same Law Because although before the time of H. 2. they were several Kingdoms or Realms yet the Laws of England were there Proclaimed by King John and is subject to the Laws of England And if the King having a Title to Present to a Church in Ireland confirm it to the Incumbent under the Great Seal of England it is good 45 Ed. 3. 70. 8. In Savacre's Case it was adjudged in the Common Pleas That if a Baron or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices and after they discharge their Chaplains from their Service they shall retain their Benefices during their Lives and if the Baron takes others to be his Chaplains they cannot take many Benefices during the Lives of the others which are Beneficed and Discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplains 9. T. prayed a Prohibition to the Arches the Case was this One had a Recovery in a Quare Impedit and he had a Writ to the Bishop against T. upon which A. his Clerk was admitted c. and after the Recovery died and T. supposing his heir to be in the Ward of the King and that the said A. took another Benefice without sufficient Qualification by which the Church was void by Cession and he attained a Presentation of the King and he was Admitted c. by the Lord-keeper being within the Diocess of Lincoln and A. sued him in the Ecclesiastical Court and T. prayed a Prohibition and it was granted per totam Curiam for without question there ought nothing to be questioned in the Ecclesiastical Court after the Induction of the party And whether it is a Cession
consent of Five others of the said Commissioners his Companions and namely which Deprived him It was not sound that the Commissioners were the Natural born Subjects of the Queen as the Statute Enacts that they should be And it was moved That the Deprivation was void 1 Because that whereas the Commission is to them or any Three of them of which the said Bishop to be one amongst others it ought to have been the Sentence of them all according to the Authority given to them which is equal and not of one with the assent of the other 2 Because it is not found that the Commissioners are the Natural born Subjects of the Queen as by the words of the Statute they should be 3. Because the punishment which the Statute provides for those of the Ministry which deprave this Book is to lose the profits of all their Spiritual promotions but for a year and to be Imprisoned by the space of Six months and not to be Deprived till the Second offence after that he had been once committed and therefore to deprive him for the First offence was wrongful and contrary to the Statute But the whole Court for the Form of the Deprivation it is that which is used in the Ecclesiastical Courts which alwaies names the chief in Commission that are present at the beginning of the Sentence and for the other they mention them only as here but of their assent and consent to it and in such cases we ought to give credit to their Form and therefore it is not to be compared to an Authority given at Common Law by Commission And it is to be intended that the Commissioners were the Natural born Subjects of the Queen unless the contrary appear But here at the beginning it is found That the Queen Secundum tenorem effectum Actus praedict had granted her Commission to them in causis Ecclesiasticis and therefore it appeareth sufficiently that they were such as the Statute wills them to be And for the Deprivation they all agreed that it was good being done by Authority of the Commission for the Statute is to be understood where they prosecute upon the Statute by way of Indictment and not to restrain the Ecclesiastical Jurisdiction being also but in the Affirmative And further by the Act and their Commission they may proceed according to their discretion to punish the Offence proved or confessed before them and so are the words of their Commission warranted by the Clause of the Act. And further the Ecclesiastical Jurisdiction is saved in the Act. And all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this Clause in the Act. Vid. Hill 33 Eliz. Rot. 315. 10. Before many Noble-men Archbishops and Bishops and the Justices and Barons of the Exchequer 1 agreed That the Deprivation of Minsters for Non-conformity to the last Canons was lawful by the High Commissioners For by the Common Law the King hath such a power in Causes Ecclesiastical and it is not a thing de novo given by the First of Eliz. For that is Declaratory only c. and the King may delegate it to Commissioners And the King without a Parliament may make Constitutions for the Government of the Clergy and that such a Deprivation ex officio without Libel is good 2. That the Statute of 5 H. 5. c. 4. is to be intended when they proceed upon Libel and not when ex officio Read the Statute 3. When their Petition is Subscribed by a great number with intimation That if the King denies their Suit that many thousands of his Subjects shall be discontented That this is an Offence Finable at discretion and is near to Treason by raising Sedition by Discontent c. Vid. More 's Rep. Trin. 2 Jac. in the Star-Chamber 11. By the Statute of 13 Eliz. cap. 12. it is Enacted That every person c. to be Admitted to a Benefice with Cure except that within Two months after his Induction he publickly Read the said Articles in the same Church whereof he shall have Cure in the time of Common Prayer there with declaration of his unfeigned assent thereto c. shall be upon every such default ipso facto immediately deprived Then follows afterwards a Proviso relating to this clause viz. Provided alwaies That no Title to conferr or Present by Lapse shall accrue upon any Deprivation ipso facto but after Six months after Notice of such Deprivation given by the Ordinary to the Patron Thus the Patron immediately upon such Deprivation may Present if he please and his Clerk ought to be Admitted and Instituted but if he doth not no Lapse incurrs until after Six months after Notice of the Deprivation given to the Patron by the Ordinary who it seems is to supply the Cure until the Patron Present In the last Case of the Lord Dyer 23 El. it was Resolved That where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never Subscribed the Articles before the Ordinary as the Statute of 13 of El. requires Upon Question whether the First Living vacavit per mortem of him or not the Court Resolved That the First Living became vacant by his death and not by accepting the Second because he was never Incumbent of the Second for not Subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the Second Living became void as if they had never been This differs from the Case of not Reading the Articles within Two months after Induction For the not Subscribing the Articles makes that he never was Incumbent of the Second Living and consequently no cause of losing the First but the not Reading the Articles within Two months after Induction doth cause a deprivation of that whereof he was Incumbent For as an Incumbent that without qualification or dispensation doth take a Second Living doth thereby lose the First so the same Incumbent for not Reading the Articles within Two months after his Induction into the Second may lose the Second and thereby lose both viz. the First by taking a Second without qualification or dispensation and the Second for not Reading the Articles as aforesaid whereof he was Compleat Incumbent by Admission Institution and Induction of the Second Living full Two months before he lost it for not Reading the Articles 12. Parker being Parson of a Church was deprived by the High Commissioners for Drunkenness and moved for a Prohibition but it was not granted and he was directed to have Action for the Tithe and upon that the validity of the Sentence shall be drawn in question If a man be Admitted Instituted and Inducted to a Church and afterwards is deprived for that he was Instituted contrary to the course of the Ecclesiastical Law such Sentence of deprivation is void at the Common Law for that it is
qualities of the Persons of whom they were begotten 6. The different modes of prosecution of Bastardy in the Temporal and Ecclesiastical Courts 7. Limitation of Time in reference to Birth and Bastardy by the Civil Law The chast Widow of Paris whose Child born the 14 th Month after her Husbands death was adjudged Legitimate 8. Of a Child born before Marriage or immediately after Marriage or long after Marriage of a Woman whose Husband dyed without Bedding her whether Bastard or not 9. The legal computations of Time touching the Birth of a Child whether Legitimate or not And of such as are begotten after a Divorce 10. The punishment of a Woman having a Bastard that may be chargeable to the Parish 11. How the same Person may in divers respects be both a Bastard or Nullius Filius and yet a Son 12. The Physicians report in Court in a Case at Common Law how long a Woman may go with Child 13. The Bishops Certificate requisite in a Plea of Bastardy indisability of a Plaintiff 14. The power of the Justices of the Peace and of the Sessions in reference to the reputed Fathers of Bastards 15. In an Action for saying such an one had a Bastard a Prohibition to the Ecclesiastical Court because they admitted the Defendants Confession but would not allow of his Justification 16. Who are held as Bastardiz'd at the Common Law 17. What a Mulier is at Common Law 18. Other Descriptions of Muliers and Bastards 19. The difference between the Civil and Common Law in point of Muliers and Bastards 20. What kind of Divorce shall Bastardize the Issue 21. Different Resolutions touching Bastardy 22. A Man is Divorc'd Causa Frigiditatis Marries again hath Issue by the second Wife the first Living Q. Whether that Issue be a Bastard 23. A Case of Remark touching this Subject adjudg'd in Ireland 1. BASTARD Bastardus Nothus Spurius Filius Naturalis Filius Populi Filius nullius Incestuosus Adulterinus illegitimo coitu Progenitus Bastard is a French word Bastardd Brittish yet some are of opinion that the word Bastard hath its derivation from two German words Boes art that is Degeneris ingenii Q. an non è Graec. Bassaris i. e. Meretrix vel Concubina Bastard and Filius Naturalis are both one Bastard is that Male or Female that is begotten and born of any Woman not Married so that the Childs Father is not known by order and judgment of Law for which reason he is called Filius Populi 2. Bastard and Mulier are opposed each to other at the Common Law Otherwise at the Canon Law For at the Common Law by Mulier is meant and understood one that is lawfully begotten and born and therefore where they are compared together we shall find at that Law this addition to them Bastard eigne or Elder and Mulier puisne or Younger and by the Common Law he or she that is born before Marriage celebrated between the Father and Mother is called a Bastard and by that Law a Child begotten and born of a Woman out of Marriage by one who after Marrieth her is said to be not a Mulier but a Bastard This word Mulier seems to be a word corrupt from Melior or the French Melieur signifying at Common Law the lawful issue preferr'd before an Elder Brother born out of Marriage But by Glanvile such Lawful Issue seems rather Mulier than Melior because begotten à Muliere and not ex Concubina for he calls such issue Filios Mulieratos opposing them to Bastards Quia Mulieris appellatione uxor continetur l. Mulieris 13. ibid. gloss De verb. sign 3. Bastardy Bastardia at the Common Law signifieth a defect of Lawful Birth objected to one begotten out of Marriage which Law doth distinguish Bastardy into Special and General The later whereof being only a Certificate from the Bishop of the Diocess to the Kings Justices after just enquiry made whether the Party enquir'd of be Bastard or not upon some question of Inheritance and the former being only a Suit commenced at Common Law against him that calls another Bastard This being called Bastardy special because Bastardy is the principal and special matter in Tryal As the other is called Bastardy General because Inheritance is there the chief thing under debate and in contest By both these significations Bastardy at the Common Law seems to be taken only for an Examination or Tryal whether a Mans Birth be illegitimate and so does but rather imply what it is not than express what it is Which according to a better Definition is an unlawful state of Birth disabling the Partie to succeed in Inheritance 4. It appears by what hath been said that a Bastard is one that is born of any Woman so as the Father be not known according to the order of Law So that if any Woman hath a Child before her Marriage it is a Bastard And though the Father thereof after Marry the Mother yet in the judgment of the Common Law it is still a Bastard but at the Canon Law it is otherwise as aforesaid If one Marry infra gradui Maritagii and hath thereby Issue Q. whether it he a Bastard or Mulier in case Divorce doth after thereupon ensue If there be Issue by a second Husband or Wife the former then living such Issue is a Bastard A Woman Eloping from her Husband and Living in Avoutry her Husband being beyond Sea that he cannot come at her having Issue in this time this Issue seems to be a Bastard But by the Common Law if the Husband be infra quatuor maria he within the Jurisdiction of the King of England and his Wife have Issue in his absence No proof is Admissable to prove the Child a Bastard unless there be an apparent impossibility of Procriation in the Husband in which case such Issue albeit born within Marriage is a Bastard And by the Civil Law if the Husband be so long absent from his Wife or by no possibility of Nature the Child can be his or the Adulterer and Adulteress be so known to keep company together as that by just account of time it cannot fall out to be any other Mans Child but the Adulterers himself it is accounted to be a Bastard And yet in these very cases within this Realm unless the Husband be all the time of the impossibility of Procreation as aforesaid beyond the Seas the Rule of Law will hold true Pater is est quem Nuptiae demonstrant Note in debt upon an obligation by Cook Chief Justice And so was the Opinion of the Civilians That a Disagreement to the Marriage had under the Age of of Consent at the Age it ought to be published in Court otherwise the Issue may be Bastarded For a Disagreement in Writing is not a sufficient Disagreement nor a good Proof 5. The Law hath given several Appellations for the distinction of Bastards according to
Immunitatibus gaudeant quibus Milites Burgenses Parliamenti Ant. Brit. fo 284. nu 30. 6. The Jurisdiction of the Convocation in this Realm though relating to matters meerly Spiritual and Ecclesiastical yet is subordinate to the establish'd Laws of the Land it being Provided by the Statute of 25 H. 8. c. 19. That no Canons Constitutions or Ordinances shall be made or put in execution within this Realm by Authority of the Convocation of the Clergy repugnant to the Prerogative Royal or to the Customes Laws or Statutes of this Realm To the same effect was that of 9 Ed. 1. Rot. Parl. Memb. 6. Inhibitio Archiepiscopo omnibus Episcopis aliis Praelatis apud Lambeth Conventuris ne aliquid statuant in praejudicium Regis Coronam vel dignitatem For although the Archbishop and the Bishops and the rest of the Clergy of his Province Assembled in a Synod have power to make Constitutions in Spiritual things yet they ought to be Assembled by Authority of the King and to have as aforesaid his Royal Assent to their Constitutions which being had and obtained the Canons of the Church made by the Convocation and the King without Parliament shall bind in all matters Ecclesiastical as well as an Act of Parliament as was Resolved in Bird and Smiths Case Although the Saxons who founded and endowed most of our Churches and made many good Laws in reference to the Jurisdiction power and priviledges thereof yet the Royal Prerogative with the Laws and Customes of the Realm were ever so preserved as not to be invaded thereby King AEthelbert the first Saxon King King Ina AEthelstane Edmund Edgar and King Kanute all these made Laws in favour of the Church but none of them ever entrenched on the Prerogative of the Crown or on the Laws or Customes of the Realm nor any of those ancient Church-Laws ever made without the Supream Authority to ratifie and confirm the same 7. The Laws and Constitutions whereby the Ecclesiastical Government is supported and the Church of England governed are the General Canons made by General Councils also the Arbitria Sanctorum Patrum the Decrees of several Archbishops and Bishops the Ancient Constitutions made in our several Provincial Synods either by the Legates Otho and Othobon or by several Archbishops of Canterbury All which by the 25 H. 8. are in force in England so far as they are not repugnant to the Kings Prerogative the Laws and Customes of England Also the Canons made in Convocations of Later times as Primo Jacobi Regis and confirmed by his Regal Authority Also in some Statutes Enacted by Parliament touching Ecclesiastical affairs together with divers Customes not written but in use beyond the memory of Man and where these fail the Civil Law takes place Among the Britain Councils according to Bishop Prideaux his Synopsis of Councils Edit 5. those amongst the rest are of most remark viz. At Winchester in King Edgars time under Dunstane at Oxford by Stephen Langton Archbishop of Canterbury at Claringdon under King Henry the Second The Council under King Edward the 6 th in which the 39 Articles of the English Confession was concluded and confirmed The Synod under the same King from which we receive the English Liturgy which now we have composed by Seven Bishops and Four Doctors and confirmed by the publick consent of the Church which as also the said 39 Articles the succeeding Princes Queen Eliz. King James and King Charles ratified and commended to Posterity At London a Synod in which 141 Canons or Constitutions relating to the pious and peaceable Government of the Church presented to King James by the Synod and confirmed by his Regal Authority and at Perth in Scotland where were Articles concerning Administring the Sacrament to the Sick Private Baptism where Necessity requires Confirmation admitting Festivals Kneeling at the Receiving the Sacrament and an allowance of Venerable Customes But de Concil Britan. vid. D. Spelman The Ancient Canons of the Church and Provincial Constitutions of this Realm of England were according to Lindwood the Canonist who being Dean of the Arches compiled and explained the same in the time of King H. 6. made in this order or method and under these Archbishops of Canterbury viz. The Canons or Constitutions 1. Of Stephen Langton Cardinal Archbishop of Canterbury in the Council at Oxford in the year of our Lord 1222 who distinguish'd the Bible into Chapters 2. Of Otho Cardinal the Popes Legate in Anno 1236. on whose Constitutions John de Athon Dr. of Laws and one of the Canons of Lincoln did comment or gloss 3. Of Boniface Archbishop of Cant. 1260. 4. Of Othobon Cardinal of St. Adrian and Legate of the Apostolical Chair on whose Constitutions the said John de Athon did likewise Glossematize His Canons were made at London in Anno 1268. 5. Of John Peckham Archbishop of Canterbury at a Synod held at Reding An. 1279. 6. Of the same Peckham at a Synod held at Lambeth An. 1281. 7. Of Robert Winchelse Archbishop of Canterbury An. 1305. 8. Of Walter Reynold Archbishop of Canterbury at a Synod held at Oxford An. 1322. These Constitutions in some Books are ascribed to Simon Mepham but erroneously for the date of these Constitutions being An. 1322. the said Walter Reynold according to the Chronicle died in An. 1327. and was succeeded by Simon Mepham 9. Of Simon Mepham Archbishop of Cant. An. 1328. 10. Of John Stradford Archbishop An. 13 ... 11. Of Simon Islepe Archbishop An. 1362. 12. Of Simon Sudbury Archbishop An. 1378. 13. Of Tho. Arundel Archbishop at a Synod or Council held at Oxford An. 1408. 14. Of Henry Chichley Archbishop An. 1415. 15. Of Edmond Archbishop of Canterbury 16. Of Richard Archbishop of Canterbury The Dates of the Canons or Constitutions of these Two last Lindwood makes no mention by reason of the uncertainty thereof but withal says it is clear That Richard did immediately succeed the foresaid Stephen Langton and the said Edmond succeeded Richard Lindw de Poen c. ad haec infra in verb. Mimime admittatur If so then it was most probably Richard Wethershed who was Archbishop of Canterbury An. 1229. And St. Edmond Chancellor of Oxford who was Archbishop of Canterbury An. 1234. 8. Councils were either General or Oecumenical from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereunto Commissioners by the Emperours Authority were sent from all quarters of the World where Christ hath been preached Or National or Provincial or Particular by Bullenger called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 such were the Councils of Gangra Neo-caesarea and many others commonly Assembled by Patriarchs and Bishops in some particular place of a Countrey The ends of these Councils chiefly were either for the suppression of Heresies the decision of Controversies the appeasing of Schisms or the Ordaining of Canons and Constitutions for decency of Order in the Church Vid. AElfrici Canones ad Wulfinum Episcopum Can. 33. where it is said That there were Four Synods
Simony and the Error of the Nicholaitans whereof they counted such Priests guilty as had married Wives though they did not as the Nicholaitans make them Common At Mantua An. 1066. the Emperour Henry the Fourth assembled a Council for pacifying the Differences in the Roman Church between Alexander the Second and Candalus called Honorius the Second wherein Alexander was declared Pope and Candalus pardoned At Winchester Pope Alexander the Second by two Cardinals sent into England Assembled a Council to appease the Troubles of the Church in this Kingdom wherein they deposed certain Bishops and Abbots among whom Stigandus Bishop of Canterbury because he had possessed that Chair Robert Archbishop thereof being then alive and because he possessed another Bishoprick with it viz. the Bishoprick of Winchester At Friburgh anciently called Tributia the Bishops of Germany assembled themselves in a Council in which they declared the Archbishop of Bremen to be an Enemy to their Countrey except he delivered up the young Emperour Henry the Fourth to be educated according to the Covenant made between the Princes and Bishops of Germany during his Minority At Mentz An. 1069. a Council was assembled in order to a Divorce of the Emperour Henry 4. from his Wife from which he was disswaded by the Arguments of Petrus Damianus the Popes Nuncio for that purpose At Erfurd An. 1074. the Bishop of Mentz assembled a Council in order to an observance of a Command from Pope Gregory 7 th touching a separation of the Priests within the Bishoprick of Mentz from their Wives or else to depose them from their Offices By reason whereof as also by reason of the Bishops exaction of Tithes from Turingia this Council rose in a tumult and great confusion re infecta At Mentz An. 1075. the Bishop thereof being commanded by Pope Gregory 7 th to separate the Priests from their Wives convened a Synod but the married Priests so terrified the Bishop of Mentz and the Bishop of Chur the Popes Nuncio that this Council also as the former was dissolved and nothing done At Wormes the Emperour assembled all the Bishops of his Kingdom in order to a deposing of Pope Gregory 7 th otherwise called Hildebrand accused of Perjury Ambition Avarice and Pride The determination of this Council was That he should be removed from the Popedom which was Subscribed by all the Bishops present at the Council At Friburgh An. 1076. another Council was assembled wherein the Princes of Saxony and Sweve appeared in favour of the See of Rome against the Emperour Henry the Fourth At Rome by order of the Pope a Council was assembled in Lent wherein the Emperour Henry 4 th was not only Anathematiz'd but also denuded as far as in them lay of his Imperial Dignity At Brixia in the year 1080. the Emperour Henry 4 th assembled 30 Bishops of Germany and Italy together with many Princes of the Empire All which consented That Hildebrand should be deposed from the Popedom and Gilbertus Bishop of Ravenna placed in his room At Rome An. 1081. the Emperour Henry 4 th with the Advice of the Roman Senate appointed a Council to be Assembled wherein Hildebrand was deposed and Gilbertus otherwise Wigbertus to succeed in the Papacy This Council was called by the said Emperour soon after he had besieged and taken the City of Rome At Beneventum a Council was Assembled by Pope Victor the Third who before his Election to the Papacy was named Desiderius Abbot in Cassinates chosen by the Romans not regarding Gilbertus whom the Emperour had made Pope In this Council Victor the Third Anathematized Gilbertus Bishop of Ravenna At Clermont in Overnie of France in the year 1095. Vrbanus the Second convened a great Assembly wherein it was Ordained That an Army should be raised for support of the distressed Christians in Jerusalem and recovery of the Holy Land out of the hands of the Infidels The which was likewise Ordained in the Council of Placentia and other Councils of the lesser concern here omitted for Brevities sake In the next viz. the 12 th Century there were above 115 Councils To instance in the most material of them may suffice for this Abridgment At Paris Vrbanus the Second at the complaint of Alexius Emperour of Constantinople against the rage of the Turks assembled a Council of most Nations and was present himself thereat In this Council were appointed 100000 Men out of the Western Kingdoms for the Holy Land At Florence Pope Paschalis the Second convened a Council wherein the Bishop of Florence was called to an account for Preaching openly That Antichrist was already come for which he was sharply rebuked and commanded That for time to come he should utter no such Doctrine At London in the year 1102. in the Third year of the Reign of Hen. 1. King of England Anselmus Archbishop of Canterbury assembled a Council for prohibiting the Marriages of Priests and the year following was constrained to convene another Council at St. Pauls in London to make Constitutions for the punishment of such as defiled themselves with Sodomitical Lusts At Mentz An. 1106. a great Council was assembled against the Emperour Henry 4. whom they condemned of Heresie which was Simony because he would not resign the Right of Investure of Bishops into the Popes hands and having Excommunicated him took off his Imperial Crown At Troyes in France in the year 1107. Pope Paschalis the Second convened a Council which treated concerning the Investure of Bishops not to be in the power of Lay-persons At Triburia in Friburgh in the year 1119. the Bishops of Germany assembled concerning the Investure of Bishops and in opposition to the Emperour Henry the Fifth At Senon a Council was called against Abelardus by reason of his Heresie He was also accounted an Heretick in the Council of Soâ—sson The First Four Lateran Councils are comprehend under one and the same Title as more favouring the Roman Dissentions than the Doctrine and Discipline of the Church The first under Henry the Fifth and Calixtus the Second which had 300 or according to Bellarmine 900 Bishops and 22 Canons In this Council Burdinus the Anti-Pope was laid aside the vestures with the Ring and Staff were taken from the Emperour and given to the Pope who absolved the Emperour and gave him power of electing German Bishops In this Council there were appointed Crosses for the 〈◊〉 War by means whereof Pardon of Sins might be grant 〈◊〉 them that undertook that War and to their Families The Second Lateran Council was under Lotharius the Emperour and Innocentius the Second which increased to the number of about 2000 Bishops This Council omitted Thirty Canons lately published by Gratian from the Vatican Library which Bellarmine is said to reject It discharged Peter usurping the Roman See after Leo under the name of Anacletus the Second branded for Hereticks Peter of
Diocess to which the Court viz. Jones and Whitlock answered That at the Common Law a Bishop cannot Cite a man out of his Diocess And that the Statute of 23 H. 8. inflicts a punishment c. and Whitlock said That a Bishop hath not power of Jurisdiction out of his Diocess but to Absolve him being Excommunicate 2 Upon the Statute of 5 Eliz. cap. 23. because the Case of Defamation is not within the Statute and then the Statute Enacts That it shall be void To which the Court answered That he ought to averr that by way of Plea and so also said the Clerks of the Court That he ought to have Sued a Habeas Corpus and upon Return thereof to Plead But the Plea was admitted de bene esse and the party bailed 16. No Letters of Excommunication are to be received in stay of Actions if they are not under the Seal of the Ordinary for an Excommunication under the Seal of the Commissary is not to be allowed in such case If the principal cause of the Action for which the Excommunication was be not comprized within the Letter of the Certificate it is not to be allowed that so it may appear to the Court that the Ecclesiastical Court had Jurisdiction of the Cause for which he was Excommunicated The Certificate ought to be Vniversis Ecclesiae Filiis or to the Justices of the Court where the Suit is to be stayed Also the Excommunication certified ought to be duly dated that is the Certificate ought to contain the day of the Excommunication A Certificate by the Archdeacon is sufficient by the Custome And upon an Excommunicato Capiendo if it appears that the Excommunication was by an Archdeacon of some certain place it ought also to appear either expresly or by implication in the Certificate that the matter for which the Excommunication was was within his Jurisdiction otherwise it is not good 17. F. being apprehended upon an Excommunicato Capiendo and the Significavit being That he was Excommunicated for not answering Articles and not shewing what they were his discharge was prayed for the Incertainty thereof and per Curiam it is not good and therefore was Bailed Coke 22 E. 4. is That a man was Excommunicated for certain Causes not good and so Co. 5. Arscots Case Schismaticus inveteratus is not good Excommunication nor shall be allowed in the cause of him who Excommunicates him 5 E. 3. quod fuit concessum per Doderidge 18. In Trollops Case it was Resolved That the Official cannot certifie Excommunication for none shall do that but he to whom the Court may write to assoil the party as the Bishop and Chancellor of C. or O. and for that if a Bishop certifie and die before the Return of the Writ it shall not be received but the Successor shall do it and one Bishop shall not certifie an Excommunication made by a Bishop in another Court but a Bishop after Election before Consecration may and so may the Vicar-General if it appears that the Bishop is in Remotis agendis also that the Suit and the Cause are to be expressed in the Certificate that the Temporal Court may judge of the sufficiency and if it be insufficient as if a Bishop certifie an Excommunication made by himself in his own Cause the Court may write to absolve him 19. H. was condemned in the Chancellors Court of Oxford in Costs and had not paid an Excommunicato Capiendo being awarded upon a Significavit returned and delivered here in Court according to the Statute of 5 Eliz. cap. 23. He was Arrested thereupon Resolved The Excommunication was good though the Significavit doth not mention any of these Causes in the Statute but it is for other Causes but if any Capias with Proclamations and Penalties be therein awarded the Penalties be void unâ—ess the Significavit express it to be for one of the Causes mentioned â—n the Statute 20. In another Case where a man was Excommunicated upon a Sentence in the Delegates for Costs in Castigatione Morum 21 Jac. a Capias with Proclamations issued and he being taken Quoad the Excommunicato Capiendo pleads That the Offence and Contempt was pardoned by the General Pardon of 21 Jac. It was Agreed That the Pardon did not discharge the Costs of the party which were taxed before the Pardon It was moved there That as the Costs were not taken away so no more was the Excommunication which is the means to enforce them to be paid But Resolved That this Excommunication before the Pardon is but for a Contempt to the Court and all Contempts in all Courts are discharged by the Pardon wherefore the same was discharged and for the payment of the Costs the party is to have new Process 21. A man was taken upon an Excommunicato Capiendo and the Significavit did not mention That he was Commorant within the Diocess of the Bishop at the time of the Excommunication and for that cause the party was discharged And in an Action where an Excommunication was pleaded in Bar and the Certificate of the Bishop of Landaph shewed of it but did not mention by what Bishop the party was Excommunicated it was for that reason adjudged void 22. Upon a Contract Sentence in the Ecclesiastical Court was That the Defendant should marry the Plaintiff he did not do it for which cause he was Excommunicated The Defendant appealed to the Delegates by whom the Cause was remitted to the Judge à Quo who Sentenced him again where he was also Excommunicated again for non-performance of the Sentence He appealed to the Court of Audience and then had 〈◊〉 He was taken by a Capias Excom upon the first Excommunication upon a Habeas Corpus it was Resolved That the Absolution for the latter had not purged the First Excommunication quia Ecclesia decepta fuit 2 That the Appeal did not suspend the Excommunication although it might suspend the Sentence 23. In Weston and Ridges Case it was Resolved That upon an Information exhibited in the Ecclesiastical Court for laying of violent hands upon a Clerk and Costs there given against the Defendant for which he was Excommunicated for not paying them a Prohibition should issue forth because it was not at the Suit of the party and Costs are not grantable there upon an Information 24 In the Case of Prohibitions it was Resolved Mich. 8 Jac. That if a man be Excommunicated by the Ordinary where he ought not as after a General Pardon c. And the Defendant being negligent doth not sue a Prohibition but remains Excommunicate by Forty daies and upon Certificate in Chancery is taken by the Kings Writ de Excommunicato Capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what Remedy the party hath who is wrongfully Excommunicated to which it was Answered he hath Three Remedies viz. 1
which he hath such right of presentation he may at his own Suit have this Writ of Ne admittas directed to the Bishop forbidding him to collate or admit any to that Church during the time aforesaid 5. Vi Laica Removenda is a Writ which upon the Bishops Certificate into Chancery of a force and resistance touching a Church lieth where a Debate or Controversie is between two Parsons for a Church the one whereof doth enter into the Church with a strong hand and great power of the Laity holding the other out and keeping possession thereof vi armis whereupon he that is so held out of possession may have the said Writ directed to the Sheriff of the County to remove the force within that Church and if need be to raise the Posse Comitatus to his assistance and to Arrest and Imprison the persons that make resistance so as to have their Bodies before the King at a certain day to answer the contempt which Writ is ever made returnable and is sometimes grantable without the Bishops Certificate as aforesaid for it may it seems be had upon a surmise made thereof by the Incumbent himself without such Certificate there being a distinct and several form thereof in each of the said Cases So that this Writ properly lieth for the removal of any forcible possession of a Church kept by Lay-men 6. Indicavit is a Writ in the nature of a Prohibition issuing out of the Kings Temporal to his Ecclesiastical Courts and lieth for the Patron of a Church whose Clerk is Defendant in some Spiritual Court in an Action of Tithes commenced against him by another Clerk and extending to the value of the fourth part of the Church or of the Tithes belonging thereunto for in this Case the cognizance thereof belongs to the Kings Temporal Courts by the Stat. of Westm 2. c. 5. wherefore the Defendants Patron being like to be prejudiced thereby in his Church and Advowson in case the Plaintiff should prevail and obtain in the Spiritual Court So that this Writ lieth properly where there is a contest or Controversie between two Clerks in an Ecclesiastical Court of a Church or part thereof for Dismes or Tithes amounting at the least to the value of the fourth part of the Church In which regard the Patron of the Clerk Defendant losing his Advowson in case the Plaintiff should recover in the Spiritual Court shall have this Writ directed to the Clerk Plaintiff or to the Officers of the Ecclesiastical Court commanding them to cease their proceedings until it be discust and decided in the Temporal Court to whom the cognizance of the Advowson belongs This Writ shall be between four persons whereof two are Patrons and two are Clerks and is not returnable as other Writs but if they cease not their Suit and proceedings in the Ecclesiastical Court an Attachment issues 7. Advocatione Decimarum is a Writ that lieth for the claim of the fourth part or upwards of the Tithes that do belong to any Church 8. Admittendo Clerico is a Writ granted to him who hath recovered his right of presentation against the Bishop in the Common Pleas 9. Beneficio Primo Ecclesiastico habendo is a Writ directed from the King to the Lord Chancellor to bestow the Benefice that shall first fall in the Kings gift above or under such a value upon this or that person 10. Cautione admittenda is a Writ that doth lie against a Bishop who holdeth and detaineth an Excommunicate Person in Prison notwithwanding he offers sufficient Caution or Assurance to observe and obey the Orders and Commandments of Holy Church from thenceforth The form and further effect of which Writ vid. Reg. 11. Clerico infra sacros ordines constituto non eligendo in officium is a Writ directed to the Bayliffs c. that have imposed a Bailywick or Beadleship upon one in Holy Orders charging him to release him thereof 12. Clerico capto per Statutum Mercatorum c. is the delivery of a Clerk out of Prison who is imprisoned upon the Breach of the Statute Merchant 13. Clerico convicto commisso Goalae in defectu Ordinarii deliberando is a Writ for the delivery of a Clerk to his Ordinary that was formerly convict of Felony by reason his Ordinary did not challenge him according to the Priviledges of Clerks 14. Annua Pensione is a Writ now grown obsolete and out of use For whereas anciently there were certain Abbies and Priories that in respect of their Foundation or Creation were obliged unto an Annual Pension due unto the King for such his Chaplains unprovided of a sufficient Living as he should nominate and appoint This Writ in pursuance thereof was wont to issue to such Abbot or Prior in favour of such whose name was comprised in the said Writ until c. requiring the said Abbot or Prior that for his said Chaplains better assurance he give his Letters Patents for the same 15 Vicario deliberando occasione cujusdam Recognitionis c. is a Writ that lieth for a Spiritual person imprisoned upon forfeiture of a Recognizance without the Kings Writ For as there is one Form of the Writ Statuto Mercatorio for the imprisoning of him who hath forfeited his Bond called the Statute Merchant until the Debt satisfied as to Lay persons So there is another Form of the said Writ as against Ecclesiastical Persons 16. Touching the three Writs viz. De Excommunicato capiendo Excommunicato deliberando Excommunicato recipiendo vid. sup in cap. de Excommunicatione 16. The Village of St. Andrews brought a Quare Impedit against the Archbishop of York and Countess of Strewsbury and after brought an Assize of Darrein Presentment for the same Church The Quare Impedit is returned It was said by the Court that the Assize of Darrein c. shall abate vid. by Hobard But if he had brought another Quare Impedit it had been well And so it was resolved in the Earl of Bedfords Case and by Hutton that the Statute of W. 2. cap. 5. proves it viz. Quod habeant Ass c. vel Quare Imp. but not both vid. 8 E. 3. 17. 18. In a Quare Impedit the Incumbent pleads that before the Action brought he had been in by the space of six months c. of the presentment of S. S. in the Church This difference was taken by Serjeant Henden and agreed by the Court when the Incumbent pleads the presentment of a Stranger there he ought to shew That the Stranger had a Title and that he was seised of the Advowson c. or that he was seised of a Mannor to which c. But where he pleads that he was in for Six months of the Presentment of the Plaintiff himself or by collation by lapse by the Ordinary there he need not make any Title 10. E. 11. 19. If a man recovers in a Quare Impedit against an
and Godmothers in Baptism the Original thereof p. 49. s 7. Grain pays a Predial Tithe p. 411. Grant of Tithes whether good without Deed p. 386. Grass what Tithes that pays and how p. 410 411. Grass-cocks Tithed p. 374. s 50. Grave-Stone taken away whether Actionable and where p. 157. s 42. Gravel whether Tithable p. 411. Grounds lett to Strangers out of the Parish who answers the Tithe ibid. Guardian of the Spiritualties his Office and by whom Constituted p. 39. sect 1. p. 41. s 4 5. His power in the vacancy of an Archbishoprick p. 40. s 2. What Remedy in case he shall refuse to grant Faculties or Dispensations where they may or ought to be granted p. 40. s 3. H. HAlimots anciently what p. 97. Sect. 1. Hay the Law touching Tithe Hay p. 412 413. Whether the Tithes thereof may belong to the Vicar p. 381. s 77. Two Crops of Hay from the same ground the same year whether both Tithable p. 412. Hazel Holly Willows and Whitethorn in what cases they may be Tithable or not p. 377. s 62. Head-Lands whether Tithable p. 359. s 16. p. 369. s 39. p. 374. s 52. Hearth-peny the ancient Custome thereof p. 367. sect 35. p. 372. s 46. Heath Furse and Broom in what cases Tithable or not p. 413. Barren Heath-ground in what sense excused of Tithes for the first Seven years p. 375. s 53. Hedging and Fencing-Wood whether Tithable p. 370 371. s 43. Hemp what Tithes that pays p. 413. p. 366. s 32. Heyfers whether Tithes due for the Herbage thereof p. 370. Sect. 43. Henry de Blois Brother to King Stephen was Bishop of Winchester p. 37. Sect. 16. Henry de Beaford Brother to King H. 4. was also Bishop of Winchester p ibid. Herbage what and how Tithable or not p. 370 371. Sect. 43. p. 413. Herbage of Sheep whether Tithable p. 464. Heresie what and whence the word derived p. 560 561. Sect. 4. Threefold ibid. Where Cognizable p. 561 562. Sect. 6. How punished p. 562 563. Sect. 7. It is Lepra animae ibid. Hereticks an Alphabetical Catalogue of such their Errors and Heresies the Times and places when and where broached and the Councils wherein they were condemned p. 164 165 c. High Commission-Court the Constitution thereof p. 11 12. Sect. 14. What the power thereof was p. 118. Sect. 14. Hoel-Dha his Law against fighting in the Church-yard p. 140. Sect. 6. Honey whether and how Tithable p. 413 414. Hoods to be worn by Proctors in the Arches when and by whom first enjoyned p. 103. Sect. 4. Hops what Tithes they pay and how Tithed p. 414. Whether Great Tithes to the Parson or Small Tithes to the Vicar p. 366. Sect. 32. Whether they may not belong to the Vicar by Prescription p. 381. Sect. 77. The difference in Kent as to Tithes between Hops in Orchards and Hops in Gardens p. 366. Sect. 32. Hop-poles whether the Wood thereof Tithable or not p. 414. Horses for Husbandry whether their Pasture be Tithable p. 371. Sect. 43. Hospitallers either Lay or Spiritual by whom Visitable p. 34. Sect. 18. They were discharged of Tithes p. 402. Houses being Dwelling Houses where Tithable p. 414 415. Hubert Archbishop of Canterbury p. 7. Sect. 11. Hundred-Court the Antiquity thereof and Extent anciently of its Jurisdiction p. 96. Sect. 1. p. 84. Sect. 7. I JAde to call one Welch Jade whether Actionable and where p. 522. Sect. 17. Jealousie how the Civil Law proceeds therein p. 472. Sect. 7. Ideocy in what case Triable in the Ecclesiastical Court p. 120. Sect. 17. Jewish Hereticks who such anciently and what their Heresies p. 580 c. Sect. 9. Impotency in a Man how to be proved p. 493. Sect. 1. Impropriations how many within York Diocess p. 14. Sect. 2. vid. Appropriations Ina the Saxon King whether he the first that gave Peter-pence to the Pope p. 112. Sect. 8. His Law against Striking in the Church p. 140. Sect. 6. Incumbent what p. 317. Sect. 1. Legal Requisites to make a Compleat Incumbent p. ibid. His Rights p. 318. Sect. 2. Indians their severe punishment of Adultery p. 471 472. Sect. 6. Indicavit what that Writ imports the end and use thereof in what cases and for whom it may be awarded p. 647. Sect. 6. p. 439. Induction what and how executed p. 278. Sect. 16. Whether it be a Temporal Act and cognizable in the Temporal Court p. 279. Sect. 17. Infant if under age Admitted and Instituted to a Benefice it is void p. 280. Sect. 20. Whether Action lies against a Minor under Seventeen years of age for Slandering p. 524. Sect. 23. Ingulphus Abbot of Crowland his Report touching Appropriations p. 280. Sect. 1. Institution what the Form thereof Requisites thereto and what Remedy if denied p. 274. Sect. 8. Institutions are cognizable in the Ecclesiastical Court p. 123. Sect. 28. The difference between the Civil and Common Law touching Institutions p. 276. Sect. 9. Whether it works a Plenarty without Induction p. ibid. Sect. 11. p. 280. Sect. 18. p. 281. Sect. 21. Ireland until what time under the Archbishop of Canterbury p. 20. Sect. 13. Isle of a Church who may prescribe to it p. 138. Sect. 4. or whether it may be peculiar to a Family p. ibid. Sect. 5. p. 158. Sect. ult Jurisdiction Ecclesiastical and Temporal the Original of that distinction p. 133. Sect. 44. Juris utrum for and against whom that Writ lies p. 205. Sect. 1. Jure Patronatus what that Writ imports p. 206. c. How the Law proceeds therein p. 179. s 2. In what case the Bishop may make use thereof and his power therein p. 33. s 16. At whose charge it is to be p. 180. s 3. What Jus Patronatus is p. 205. s 1. Jus Canonicum the Original thereof p. 132. s 44. K KAnute King his strict Law concerning Abbots p. 328. Sect. 3. Knave whether Actionable to call one so p. 517. s 4. p. 524. s 21 24. L LAmbs how Tithable p. 416. They yield a small Tithe and may belong to the Vicar p. 198. Sect. 3. p. 359. s 16. In what case they may be Great Tithes and payable to the Parson p. 366. s 32. Lands accruing to the Crown by the Statute of Dissolutions whether they shall pay Tithes p. 416. Lapse what p. 242. s 1. The Original and gradations thereof ibid. The difference between the Common and Canon Law as to the time of Lapse p. 245. sect 2. When the Six Months shall commence ibid. How the Six Months before a Lapse are to be computed by Daies and how Notice shall be given to the Patron or not before the Lapse incurrs p. 247. s 4. Whether a Grant may be made of a Lapse p. 248. s 5. A Lapse is more a Trust than an Interest ibid. From what time the Lapse shall incurr ibid. s 6. In what case the Lapse may incurr to the Ordinary notwithstanding a Quare Impedit brought by the Patron p.