scandalous to the Church can we believe that Titus was not as well bound to correct them afterwards as to examine them before And what was this Power of Ordination and Iurisdiction but the very same which the Bishops have exercised ever since the Apostles Times But they who go about to Unbishop Timothy and Titus may as well Unscripture the Epistles that were written to them and make them only some particular and occasional Writings as they make Timothy and Titus to have been only some particular and occasional Officers But the Christian Church preserving these Epistles as of constant and perpetual use did thereby suppose the same kind of Office to continue for the sake whereof those excellent Epistles were written And we have no greater Assurance that these Epistles were written by St. Paul than we have that there were Bishops to succeed the Apostles in the Care and Government of Churches Having said thus much to clear the Authority we act by I now proceed to consider the Rules by which we are to govern our selves Every Bishop of this Church in the time of his Consecration makes a solemn Profession among other things That he will not only maintain and set forward as much as lies in him quietness love and peace among all Men but that he will correct and punish such as be unquiet disobedient and criminous within his Diocese according to such Authority as he hath by God's Word and to him shall be committed by the Ordinance of this Realm So that we have two Rules to proceed by viz. The Word of God and the Ecclesiastical Law of this Realm 1 By the Word of God and that requires from us Diligence and Care and Faithfulness and Impartiality remembring the Account we must give that we may do it with Ioy and not with Grief And we are not meerly required to correct and punish but to warn and instruct and exhort the Persons under our Care to do those things which tend most to the Honour of our holy Religion and the Church whereof we are Members And for these Ends there are some things I shall more particularly recommend to you 1. That you would often consider the Solemn Charge that was given you and the Profession you made of your Resolution to do your Duty at your Ordination I find by the Provincial Constitution of this Church that the Bishops were to have their solemn Profession read over to them twice in the year to put them in mind of their Duty And in the Legatine Constitutions of Otho 22 H 3. the same Constitution is renewed not meerly by a Legatine Power but by Consent of the Archbishops and Bishops of both Provinces wherein i◠is declared That Bishops ought to visi◠their Diocesses at fit times Correcting and Reforming what was amiss and sowing the Word of Life in the Lords Field and to put them the more in mind of it they were twice in the year to have their solemn Profession read to them It seems then that Profession contained these things in it or else the reading that could not sti◠them up to do these things What the Profession was which Presbyters then made at their Ordination we have not so clear an Account but in the same Council at Oxford 8 H. 3. i◠is strictly enjoined That all Rector◠and Vicars should instruct the People committed to their Charge and Fee◠them Pabulo Verbi Dei with the Food of God's Word and it is introduced with that Expression that they might excite the Parochial Clergy to be more diligent in what was most proper for those times And if they do it not they are there called Canes muti and Lyndwood bestows many other hard Terms upon them which I shall not mention but he saith afterward those who do it not are but like Idols which bear the similitude of a Man but do not the Offices proper to Men. Nay he goes so far as to say That the Spiritual Food of God's Word is as necessary to the Health of the Soul as Corporal Food is to the Health of the Body Which Words are taken out of a Preface to a Canon in the Decretals de Officio Iud. Ordinarii inter caetera But they serve very well to shew how much even in the dark times of Popery they were then convinced of the Necessity and Usefulness of Preaching These Constitutions were slighted so much that in 9 Edw. 1. the Office of Preaching was sunk so low that in a Provincial Constitution at that time great Complaint is made of the Ignorance and Stupidity of the Parochial Clergy that they rather made the People worse than better But at that time the Preaching Friars had got that Work into their Hands by particular Priviledges where it is well observed That they did not go to Places which most needed their help but to Cities and Corporations where they found most Incouragement But what Remedy was found by this Provincial Council Truly every Parochial Priest four times a year was bound to read an Explication of the Creed Ten Commandments the Two Precepts of Charity the Seven Works of Mercy the Seven deadly Sins the Seven principal Vertues and the Seven Sacraments This was renewed in the Province of York which had distinct Provincial Constitutions in the time of Edw. 4. And here was all they were bound to by these Constitutions But when Wickliff and his Followers had awakened the People so far that there was no satisfying them without Preaching then a new Provincial Constitution was made under Arundel Archbishop of Canterbury and the former Constitution was restrained to Parochial Priests who officiated as Curates but several others were Authorized to Preach as 1. The Mendicant Friars were said to be Authorized Iure communi or rather Privilegio speciali but therefore Lyndwood saith it is said to be Iure communi because that Privilege is recorded in the Text of the Canon Law these were not only allowed to preach in their own Churches but in Plateis publicis saith Lyndwood out of the Canon Law wherein those words were expressed and at any hour unless it were the time of preaching in other Churches but other Orders as Augustinians and Carmelites had no such general License Those preaching Friars were a sort of Licensed Preachers at that time who had no Cures of Souls but they were then accounted a kind of Pastors For Io. de Athon distinguisheth two sorts of Pastors Those who had Ecclesiastical Offices and those who had none but were such only Verbo Exemplo but they gave very great disturbance to the Clergy as the Pope himself confesses in the Canon Law 2. Legal Incumbents authorized to preach in their own Parishes Iure scripto All Persons who had Cures of Souls and Legal Titles were said to be missi à Iure ad locum populum curae suae and therefore might preach to their own People without a special
and the more Ancient the more Suspicious But the Lord Chancellor and three Chief Judges declared That by the Common Law of England every Bishop in his Diocess and the Archbishops in Convocation may make Canons to bind within the Limits of their Jurisdiction 3. The subordinate Jurisdiction which was lodged in the Bodies of the Clergy resident in Cathedral Churches and of Archdeacons in the several Diocesses I cannot find either of these to have had any Jurisdiction here before the Conquest neither were there any Courts of Justice out of the several Counties before for all Causes were transacted in the County-Courts and Sheriffs Turns and Appeals lay from them to the Supreme Judicature of the King and the Lords But this doth not hinder but these Courts may be founded on the Law of England And so the original Jurisdiction which of Right belonged to the Bishop might by degrees and a gradual Consent come to be committed as to some parts to the Bodies of Cathedral Churches and to the Archdeacons who are saith my Lord Coke Sixty in England We are told in a late Case of Woodward and Fox That there are Archdeaconries in England by Prescription which have no Dependency on the Bishop but are totally exempt And for this Godolphin is cited who refers to the Gloss on the Legatine Constitutions f. 27. where we read of some Archdeacons having a customary and limited Iurisdiction separate from the Bishop for which a Prescription lies But this is only for some special Iurisdiction as the Archdeacon of Richmond for Institutions which came first by Grant from the Bishops but that not being to be produced they insist upon Custom and Prescription as the Deans and Chapters do where the Ancient Compositions are lost But none who understand the Ancient Constitution of this Church can suppose either of them to have been Original since the Right to the Jurisdiction of the Diocess was in the Bishop before there were here either Archdeacons or Chapters with Jurisdiction In the Case of Chiverton and Trudgeon it was declared That an Archdeacon might have a peculiar Jurisdiction as to Administration c. as the Dean of St. Paul's had at S. Pancras and so the Archdeacon of Cornwall as to Wills In the case of Gastril and Iones the Chief Justice declared That the Archdeacon is the Bishop's Officer and his Authority subordinate to the Bishops and granted by them but if special Custom be pleaded that must be well proved to which Dodderidge agreed But we must distinguish between Archdeaconries by Prescription for which I can find no Foundation being all derived by Grant from the Bishop and Archdeacons having some kind of Iurisdiction by Prescription which others have not which cannot be denied All the Power which the Archdeacons have by virtue of their Office is per modum scrutationis simplicis as Lyndwood speaks tanquam Vicarius Episcopi Whatever Power they have beyond this is not Iure communi but Iure speciali and depends either upon Grant or Custom which the Gloss on the Legatine Constitutions calls a limited Iurisdiction The Archdeacon's Court is declared by the Judges in Woodward ' s Case to have been time out of Mind settled as a distinct Court from which there lies an Appeal to the Bishop's Court by the Statute 24 H. 8. c. 12. And so the Archdeacon's Jurisdiction is founded on an immemorial Custom in Subordination to the Bishops As to Deans and Chapters I observe these things 1. That although Ecclesiastical Bodies in Cathedrals were very ancient yet we read not of any Jurisdiction peculiar to themselves during the Saxon times My Lord. Coke saith There were Chapters as the Bishop's Council before they had distinct possessions And by their Books he saith it appears that the Bishops parted with some of their Possessions to them and so they became Patrons of the Prebends of the Church Such were London York and Litchfield 2. That several of our Chapters were founded and endowed by the Bishops since the Conquest Such was that of Salusbury by Osmund out of his own Estate as appears by his Charter and the Confirmation of H. 2. So was that of Lincoln by Remigius who removed the See from Dorchester thither and placed there a Dean Treasurer Praecentor and Seven Archdeacons as Henry of Huntingdon saith who lived near the time And in following times those of Exeter and Wells were settled as Dean and Chapter for they were Ecclesiastical Bodies before but not under that Denomination 3. That some had the legal Rights of Dean and Chapters as to Election of Bishops and Confirmation of Leases c. but were a Monastick Body consisting of Prior and Convent Such were Canterbury Winchester Worcester after the Expulsion of the Secular Canons for the Monks not only enjoyed their Lands but were willing enough to continue the Name of Dean among them As at Canterbury after Dunstan's time Agelmothas is called Dean in Worcester Wolstan is called Dean when he was Prior and Winsius upon the first Change is said to be placed loco Decani by Florence of Worcester At Norwich Herbert the Bishop founded the Prior and Convent out of his own Possessions in the time of William II. and they became the Chapter of the Bishop by their Foundation Now as to these it is resolved in the Dean and Chapter of Norwich's Case That when the King transferred them from a Prior and Convent the Legal Rights remained the same And in Hayward and Fulcher's Case the Judges declared That an Ecclesiastical Body may surrender their Lands but they cannot dissolve their Corporation but they still remain a Chapter to the Bishop And it was not only then delivered but since insisted upon in a famous Case That it was the Resolution of the Iudges That a Surrender cannot be made by a Dean and Chapter without Consent of the Bishop because he hath an Interest in them 4. That H. 8. endowed some as Chapters to new erected Bishopricks as Chester Bristol Oxford c. 31 H. 8 9. 34 H. 8. 17. and united others as Bath and Wells and Coventry and Litchfield 33 H. 8. 30. 34 H. 8. 15. 5. That where the Custom hath so obtained there may be a Legal-Chapter without a Dean as in the Diocesses of S. David's and Landaff where there is no other Head of the Chapter but the Bishop but they must act as a distinct Body in Elections and Confirmations of Grants by the Bishops 6. That by the Ancient Custom of England there are sole Ecclesiastical Corporations as well as aggregate A sole Ecclesiastical Corporation is where a single Person represents a whole Succession and under that Capacity is impowered to Receive and to Convey an Estate to his Successors As Bishops Deans Archdeacons Parsons c. But Parsons and Vicars are seized only in Right of the Church but as to a Bishop he may have a Writ of
considered and practised by the Clergy of this Diocese For since it hath pleased God by his wise and over-ruling Providence without my seeking to bring me into this Station in his Church I shall esteem it the best Circumstance of my present Condition if he please to make me an Instrument of doing good among you To this end I thought it necessary in the first place most humbly to implore his Divine Assistance that I might both rightly understand and conscientiously perform that great Duty which is incumbent upon me for without his help all our Thoughts are vain and our best Purposes will be ineffectual But God is not wanting to those who sincerely endeavour to know and to do their Duty and therefore in the next place I set my self as far as my Health and other Occasions would permit to consider the Nature and Extent of my Duty with a Resolution not to be discouraged altho I met with Difficulties in the Performance of it For such is the State and Condition of the World That no Man can design to to do good in it but when that crosses the particular Interests and Inclinations of others he must expect to meet with as much Trouble as their unquiet Passions can give him If we therefore consulted nothing but our own Ease the only way were to let People follow their Humours and Inclinations and to be as little concerned as might be at what they either say or do For if we go about to rowze and awaken them and much more to reprove and reform them we shall soon find them uneasie and impatient for few love to hear of their Faults and fewer to amend them But it is the peculiar Honour of the Christian Religion to have an Order of Men set apart not meerly as Priests to offer Sacrifices for that all Religions have had but as Preachers of Righteousness to set Good and Evil before the People committed to their Charge to inform them of their Duties to reprove them for their Miscarriages and that not in order to their Shame but their Reformation Which requires not only Zeal but Discretion and a great Mixture of Courage and Prudence that we may neither fail in doing our Duty nor in the best means of attaining the end of it If we could reasonably suppose that all those who are bound to tell others their Duties would certainly do their own there would be less need of any such Office in the Church as that of Bishops who are to inspect and govern and visit and reform those who are to watch over others But since there may be too great failings even in these too great neglect in some and disorder in others too great proneness to Faction and Schism and impatience of Contradiction from mere Equals therefore St. Ierom himself grants That to avoid these Mischiefs there was a necessity of a Superiour Order to Presbyters in the Church of God ad quem omnis Ecclesiae cura pertineret Schismatum semina tollerentur as he speaks even where he seems most to lessen the Authority of Bishops But whatever some Expressions of his may be when the Bishop of Ierusalem and the Roman Deacons came into his head his Reasons are very much for the Advantage of Episcopal Government For can any Man say more in point of Reason for it than that nothing but Faction and Disorder followed the Government of Presbyters and therefore the whole Christian Church agreed in the necessity of a higher Order and that the Peace and Safety of the Church depends upon it that if it be taken away nothing but Schisms and Confusions will follow I wish those who magnifie S. Ierom's Authority in this matter would submit to his Reason and Authority both as to the Necessity and Usefulness of the Order of Bishops in the Church But beyond this in several places he makes the Bishops to be Successors of the Apostles as well as the rest of the most Eminent Fathers of the Church have done If the Apostolical Office as far as it concerns the Care and Government of Churches were not to continue after their Decease how came the best the most learned the nearest to the Apostolical Times to be so wonderfully deceiv'd For if the Bishops did not succeed by the Apostles own Appointment they must be Intruders and Usurpers of the Apostolical Function and can we imagine the Church of God would have so universally consented to it Besides the Apostles did not die all at once but there were Successors in several of the Apostolical Churches while some of the Apostles were living Can we again imagine those would not have vindicated the Right of their own Order and declared to the Church That this Office was peculiar to themselves The Change of the Name from Apostles to Bishops would not have been sufficient Excuse for them for the Presumption had been as great in the Exercise of the Power without the Name So that I can see no Medium but that either the Primitive Bishops did succeed the Apostles by their own Appointment and Approbation which Irenaeus expresly affirms Qui ab Apostolis ipsis instituti sunt Episcopi in Ecclesiis or else those who governed the Apostolical Churches after them out-went Diotrephes himself for he only rejected those whom the Apostles sent but these assumed to themselves the Exercise of an Apostolical Authority over the Churches planted and setled by them But to let us see how far the Apostles were from thinking that this Part of their Office was peculiar to themselves we find them in their own time as they saw occasion to appoint others to take care of the Government of the Churches within such bounds as they thought fit Thus Timothy was appointed by St. Paul at Ephesus to examine the Qualifications of such as were to be Ordained and not to lay hands suddenly on any to receive Accusations if there were cause even against Elders to proceed judicially before two or three Witnesses and if there were Reason to give them a publick Rebuke And that this ought not to be thought a slight matter he presently adds I charge thee before God and the Lord Iesus Christ and the elect Angels that thou observe these things without preferring one before another doing nothing by partiality Here is a very strict and severe Charge for the Impartial Exercise of Discipline in the Church upon Offenders And although in the Epistle to Titus he be only in general required to set in order the things that are wanting and to ordain Elders in every City as he had appointed him yet we are not to suppose that this Power extended not to a Iurisdiction over them when he had Ordained them For if any of those whom he Ordained as believing them qualified according to the Apostles Rules should afterwards demean themselves otherwise and be self-willed froward given to Wine Brawlers Covetous or any way
for that of H. 8. was not till five years after that Statute But after that Valuation it was to be judged according to it and not according to the real Value as the Judges declared 12 Car. I. in the Case of Drake and Hill Now here was a regard had to the Poorness of Benefices so far that the Statute doth not deprive the Incumbent upon taking a second Living if the former be under 8 l. The Question that arises from hence is Whether such Persons are allowed to enjoy such Pluralities by Law or only left to the Ecclesiastical Law as it was before It is certain that such are not liable to the Penalty of this Law but before any Person might be deprived by the Ecclesiastical Law for taking a second Benefice without Dispensation of what Value soever the former were now here comes a Statute which enacts That all who take a second Benefice having one of 8 l. without Qualification shall lose his legal Title to the first but what if it be under Shall he lose it or not Not by this Law But suppose the Ecclesiastical Law before makes him liable to Deprivation doth the Statute alter the Law without any Words to that purpose The Bishop had a Power before to deprive where is it taken away The Patron had a Right to present upon such Deprivation how comes he to lose it And I take it for granted That no antecedent Rights are taken away by Implications but there must be express Clauses to that purpose So that I conclude the ancient Ecclesiastical Law to be still in Force where it is not taken away by Statute And thus my Brethren I have laid before you the Authority and the Rules we are to act by I have endeavoured to recommend to you the most useful Parts of your Duty and I hope you will not give me occasion to shew what Power we have by the Ecclesiastical Law of this Realm to proceed against Offenders Nothing will be more uneasie to me than to be forced to make use of any Severity against you And my Hearts desire is That we may all sincerely and faithfully discharge the Duties of our several Places that the blessing of God may be upon us all so that we may save our selves and those committed to our Charge OF THE NATURE OF THE TRUST Committed to the Parochial Clergy At a Visitation at Worcester October 21 st 1696. My Brethren I Have formerly on the like Occasion discoursed to you of the General Duties of your Function and the Obligation you are under to perform them and therefore I shall now confine my Discourse to these Two Things I. To consider the particular Nature of the Trust committed to you II. The Obligation you are under to your Parochial Cures I. The first is necessary to be spoken to for while Persons have only so confused and cloudy Apprehensions concerning it they can neither be satisfied in the Nature of their Duties nor in their Performance of them And there is Danger as well in setting them so high as to make them Impracticable as in sinking them so low as to make not only themselves but their Profession Contemptible For the World let us say what we will will always esteem Men not meerly for a Name and Profession but for the Work and Service which they do There is no doubt a Reverence and Respect due to a Sacred Function on its own Account but the highest Profession can never maintain its Character among the rest of Mankind unless they who are of it do promote the General Good by acting suitably to it And the greater the Character is which any bear the higher will the Expectations of others be concerning them and if they fail in the greatest and most useful Duties of their Function it will be impossible to keep up the Regard which ought to be shew'd unto it We may complain as long as we please of the Unreasonableness of the Contempt of the Clergy in our Days which is too general and too far spread but the most effectual Means to prevent or remove it is for the Clergy to apply themselves to the most necessary Duties with Respect to the Charge and Trust committed to them But here arises a considerable Difficulty which deserves to be cleared viz. concerning the just Measures of that Diligence which is required For there are some who will never be satisfied that the Clergy do enough let them do what they can and it is to no purpose to think to satisfie them who are resolved not to be satisfied But on the other side some care not how little they do and the less the better they are pleased with them and others again have raised their Duties so high that scarce any Man can satisfie himself that he hath done his Duty It is a matter therefore of the highest Consequence to us to understand What Rule and Measure is to be observed so as we may neither wilfully neglect our Duty nor despair of doing it Here we are to consider Two Things 1. How far the Scripture hath determined it 2. What Influence the Constitution of our Church is to have upon us concerning it 1. The Scripture doth speak something relating to it both in the Old and New Testament In the Old Testament we have the Duties enjoyned to the Levitical Priesthood and the extraordinary Commissions given to the Prophets As to the Levitical Priesthood we can only draw some general Instructions which may be of use altho' that Priesthood hath been long since at an end Christ being our High-Priest after another Order viz. of Melchisedeck and our Duty now is to observe his Laws and to offer that Reasonable Service which he requires But even from the Levitical Priesthood we may observe these things 1. That although the main of their Duty of Attendance respected the Temple and Sacrifices yet at other times they were bound to instruct the People in the Law For so Moses leaves it as a special Charge to the Tribe of Levi to teach Iacob his Iudgments and Israel his Law And to incourage them to do it they had a liberal Maintenance far above the Proportion of the other Tribes For by Computation it will be found that they were not much above the Sixtieth part of the People for when the other Tribes were numbred from Twenty years old they made six hundred thousand and three thousand and five hundred and fifty But the Children of Levi were reckoned by themselves from a Month old and they made but Two and twenty thousand so that if the Males of the other Tribes had been reckoned as they were it is agreed by Learned Men who had no Fondness for the Clergy that they did not make above a fiftieth or sixtieth part and yet they had near a fifth of the Profits besides accidental Perquisites as to Sacrifices and Ransoms of the First-born Thus say they God was pleased to enrich that Tribe which was devoted
Good as it was before And could they hope it would ever mend by their running away from it Or was their Duty become more easie by declining it I think it was very well for the Church of God that notwithstanding their own many Arguments they took the Sacred Office upon them at last and did God and the Church good Service in it But if Men were to judge by their Writings upon this Argument one would think none but those who had a mind to be damned would undertake it And their great Strains of Wit and Eloquence if they had any Force would keep the best Men out of the Church who were most likely to do God Service in it and we need no other Instances than these very Persons themselves And if all good and humble and conscientious Men should for the sake of the Hardness of the Work decline the Church's Service and take any other lawful Imployment what would become of the Church of God For none that had or intended to keep a good Conscience could undertake the Cure of Souls and so they must be left to such as had no Regard to their own but were either ignorant stupid and senseless Creatures or such as regarded not their own Salvation who durst undertake such a Task as would not only add to their own Guilt but bring the heavy Load of other Mens Faults upon them too What is now to be done in this Case Hath God really imposed such a Task upon all those who enter into this Sacred Function that it is morally impossible for an honest Man to discharge it with a good Conscience How then can any such undertake it But if it may be done what are those Bounds and Rules we are to observe so as a good Man may satisfie himself in a competent Measure that he hath done his Duty II. And this is that which I shall now endeavour to clear For every one who is in Orders hath a double Capacity One with Respect to the Church of God in General another to that particular Flock which is allotted to him by the Constitution of this Church and the Law of the Land For although the Nature of our Duty in general be determined by the Word of God as I have already ready shewed yet the particular Obligation of every one to his own Flock is according to that Power and Authority which by the Rules and Orders of this Church is committed to him and is fully expressed in the Office of Ordination By which it plainly appears that the Care of Souls committed to Persons among us is not an absolute indefinite and unaccountable Thing but is limited as to Place Persons and Duties which are incumbent upon them They are to teach the People committed to their Charge By whom By the Bishop when he gives Institution They are to give private as well as publick Monitions and Exhortations as well to the sick as to the whle What to all No but to those within their Cure They are to banish erroneous Doctrines and to promote Peace and Love especially among them committed to their Charge And last of all they are to Obey those who have the Charge and Government over them These things are so express and plain in the very Constitution of this Church and owned so solemnly by every one that enters into Orders that there can be no Dispute concerning them And from thence we observe several things that tend to the Resolution of the main Point as to the Satisfaction of doing your Duties as Incumbents on your several Places I. That it is a Cure of Souls limited as to Persons and Place i.e. within such a Precinct as is called a Parish II. That it is limited as to Power with Respect to Discipline Therefore I shall endeavour to clear these Two Things I. What the just Bounds and Limits of Parochial Cures are II. What is the Measure of that Diligence which is required within those Bounds As to the former we are to begin with the Limitation as to Place I. That it is a Cure of Souls limited within certain Bounds which are called Parishes which are now certainly known by long Usage and Custom and ought still to be preserved with great Care for otherwise Confusion and Disputes will arise between several Ministers and several Parishes with one another For since the Duties and the Profits are both limited it is necessary that those Bounds should be carefully preserved as they generally are by Annual Perambulations But there are some who will understand nothing of this bounding of Ministerial Duties by distinct Parishes who think they are at liberty to exercise their Gifts where-ever they are called and that it were better that these parochial Inclosures were thrown open and all left at liberty to chuse such whom they liked best and under whom they can improve most These things seem to look plausibly at the first Appearance and to come nearest to the first gathering of Churches before any such thing as Parishes were known But to me this Arguing looks like Persons going about now to overthrow all Dominion and Property in Lands and Estates because it seems not so agreeable with the first natural Freedom of Mankind who according to the Original Right of Nature might pick and chuse what served most to their own Conveniency But although this were the first State of things yet the great Inconveniencies which followed it upon the Increase of Mankind made Division and Property necessary and altho' there be no express Command of God for it yet being so necessary for the Good of Mankind it was not only continued every where but those Persons were thought fit to be punished by severe Laws who invaded the Rights and Properties of others either by open Violence and Rapine or by secret Stealth and Purloining I grant that at first there were no such Parochial Divisions of Cures here in England as there are now For the Bishops and their Clergy lived in Common and before that the Number of Christians was much increased the Bishops sent out their Clergy to preach to the People as they saw Occasion But after the Inhabitants had generally embraced Christianity this Itinerant and Occasional going from Place to Place was found very inconvenient because of the constant Offices that were to be administred and the Peoples knowing to whom they should resort for Spiritual Offices and Directions Hereupon the Bounds of Parochial Cures were found necessary to be settled here by degrees by those Bishops who were the great Instruments of converting the Nation from the Saxon Idolatry But a Work of this Nature could not be done all at once as by a kind of Agrarian Law but several Steps were taken in order to it At first as appears by Bede they made use of any old British Churches that were left standing so Augustin at first made use of St. Martin's near Canterbury and after repaired Christs-Church which were both British Churches But Ethelbert gave all
looked on Tithes in general as due to the Church as appears by very many of their Ancient Charters but they thought they did very well when they appropriated them to Monasteries of their own Erection or others as they thought fit But this Humour took so much among the Norman Nobility and served so many Purposes of Honour and Devotion as they thought besides Reason of State that the parochial Clergy were reduced to so poor a Condition that Alexander IV. complained of it as the Bane of Religion and Destruction of the Church and as a Poison which had spread over the whole Nation And it must be very scandalous indeed when the Pope complained of it For the Monks that were able generally got their Appropriations confirmed in the Court of Rome 2. There was a Competency to be settled on the parochial Clergy by the Bishops Consent which was required in order to the confirming an Appropriation as may be seen in Multitudes of them in the Monasticon besides those which are preserved in the Churches Registers Sometimes the Endowment is expressed and at other times it is reserved in the Bishop's power to do it as he sees Cause But the Bishops were either so remiss in those Times or the Monks so powerful at Rome that the poor Vicars fared so hardly that in the time of H. 2. Alexander III. sent a Reprimand to the Bishops for favouring the Monks too much and the Clergy too little and therefore requires the Bishops to take care that the Vicar had a competent Subsistence so as to be able to bear the Burden of his Place and to keep Hospitality This was directed to the Bishop of Worcester for it seems so long since the poor Vicars here were hardly provided for And yet I have seen several Forms of Appropriations made by the Bishops here after the Conquest wherein there is a twofold Salvo one for the Bishop's Right and another for a sufficient Maintenance for the Curate although the Church were appropriated ad communem usum Monachorum as of Wolstan Roger and of William in the time of Hen. II. when Alexander III. lived and of Walter de Grey Sylvester c. But it seems where a competent Subsistence had been decreed the Monks took the first Opportunity to lessen it which occasioned another Decretal in the Canon Law wherein any such thing is forbidden without the Bishop's Consent In other Places they pleaded Custom for it thence came another Decree of the Lateran Council to void all such Customs by whomsoever introduced where there was not a competent Subsistence for him that served the Cure The Monks were still refractary in this matter and because the Bishops had Power to refuse any person presented by the Monks unless they did consent to such a reasonable Allowance as the Bishop thought fit therefore they grew sullen and would not present in which Case another Decretal was made to give the Bishop Power to present And after all Clement V. De Iure Patron c. 1. reinforced the former Decretals and injoyned the Diocesans in the strictest manner not to admit any person presented to a Cure where the Church was appropriated unless sufficient Allowance were made by the Bishop's Consent and Approbation and all Custom and Privileges to the contrary are declared to be void But how far doth this hold among us now since the Appropriations are become Lay-Fees and the Bishop's Power is not mentioned in the Statute of Dissolution To this I shall give a clear Answer but I doubt not satisfactory to all Parties concerned For as Necessity and Power so some Mens Interest and Reason live very near one another 1. The Statute of Dissolution leaves all matters of Right as to persons interested just as they were before For by the Surrender the King was to have the Monasteries and Tithes in as large and ample a manner as the Abbots then had them in Right of their Houses and in the same State and Condition as they then were or of Right ought to have been And so res transit cum suo onere But this is not all For there is an Express Salvo for all Rights Claims Interests c. of all Persons and Bodies Politick So that if by the Law of England there was such an Antecedent Right in the Vicar to his Allowance and in the Bishop to assign it it is not taken away by this Statute nor any other 2. By the Law of England the Bishop had a Right to provide a competent Maintenance for supplying the Cure upon an Appropriation We are told by an unquestionable Authority in point of Law that 9 Car. 1. this Point was brought before the Kings Bench in the Case of Thornburgh and Hitchcot The Vicar complained that the Church was appropriated and that he wanted a competent Maintenance a Prohibition was prayed but denied upon this Reason That the Vicar had Reason for his Suit and that the Ordinary might compel the Impropriator to make it greater because in all Appropriations that Power was reserved to the Ordinary And so in the Year-Books it is allowed That the Ordinary may increase or diminish the Vicar's Portion 40 E. 3. Cas. 15. f. 28. By our Provincial Constitutions the Bishop is to take care that the Vicar have a competent Allowance which at that time was set at Five Marks but Lyndwood observes that as the Price of things rose so the Allowance was increased and in Stipendiaries it was then advanced to Eight or Ten Marks which according to Sir H. Spelman's Computation comes to above Sixty Pounds per Annum But some have told us That by some old Statutes even beneficed Persons were not by Law to have above Six Marks per Annum for this was the Sum allowed to Parish Priests which is so gross a Mistake in any that pretend to Law or Antiquity that it is to be wondred how they could fall into it The Truth of the Case was this the parochial Chaplains or Priests were complained of 36 E. 3. n. 23. that they could not be gotten to attend after the Plague but at excessive Rates upon this a Provincial Constitution was made extant in the Parliament Rolls wherein they are obliged to demand no more than Six Marks But who were these Parish-Priests Not such as had the legal Endowments but those who depended on the Good-Will of the Parson or People and were hired to officiate in Chapels of Ease or to perform Offices for the Dead which were so frequent at that time And these were called Annual Chaplains or Masse Chaplains and were distinguished from Domestick Chaplains who officiated in great Mens Houses in their private Oratories and from Beneficed Persons as appears by many Constitutions But whatever was understood by the Act of Parliament then it was repealed 21 Iac. 1. 28. 3. The Law of England as to a competent Subsistence for the Vicars or
Curates in appropriated Churches is founded on very good Reason For the Tithes were originally given for the Service of the Church and not for the Use of Monasteries And this was a hard Point for the Monks to get over since the Tithes were given for the Maintenance of the Clergy and they were none of the Clergy how they came to have a Right to the Tithes It is certain that the State of the Clergy and the Monastick State were different and the Offices of the Clergy and of the Monks were inconsistent if they held to their Rules how then came the Monks to take the Maintenance which belonged to the Clergy for other Offices as though they were originally intended for them For which there is no Colour or Pretence This Point was debated between two Great Men of their times S. Bernard and Petrus Cluniacensis The former a Cistertian Monk declared himself unsatisfied with the Monks taking the Maintenance of the parochial Clergy from them which was given on purpose to attend the Cure of Souls But said Petrus Cluniacensis do we not pray for their Souls But the Cure of Souls is another thing and by the Canons of the Church the Monks were forbidden to meddle in parochial Offices of Preaching Baptizing Visiting the Sick So that it might bear a Question in Law Whether a Monastery were capable of an Appropriation since by the Ecclesiastical Law they are not an Ecclesiastical Body and for that Reason Hobart saith a Nunnery is not and the same Reason will hold for the other The Cistertian Order was at first very scrupulous in this matter when they came hither and pretended to live only on their own Lands and disliked Appropriations as great Injuries to the Clergy and called it Sacrilege to take their Tithes away from them This was wisely done of them at first to ingratiate themselves with the Clergy and to get as good Lands as they could But after a while they abated their Zeal and then they pretended to do nothing without the Bishops Consent till at last they were as ready as any and got as large Privileges to exempt their Lands from Payment of Tithes under which the Clergy suffer to this day But to return to the Beginning of Appropriations among us After the Normans coming they stood upon no Niceties of Law or Original Grants but they took Possessions of the Tithes of their Manors and disposed them as they pleased The poor parochial Clergy were English whom they hated and cared not how poor they were the Bishops were Normans as fast as they could make them and the business of the Great Men was to incourage the Norman Monks that came over and to build and endow Monasteries for them to pray for their Souls which they minded so little themselves and this I take to be the true Account of the Beginning and Increase of Appropriations in England which at first were only permitted but are confirmed by the Law since the Statute of Dissolution II. In some Appropriations there were Vicarages endowed and here the Difficulty lies in distinguishing the Tithes which belong to one from the other Before the Statutes for Endowment of Vicarages in case of Appropriations 15 R. 2. 6. 4 H. 4. 12. there were Endowments made where the Bishops took care of it but they were generally so remiss in it that those Statutes were thought very necessary and one it◠seems was not sufficient For they eluded the former by appointing Vicars out of their own Body but the latter Statute requires That the Vicar shall be a Secular Person and made Spiritual Vicar and have such an Endowment as the Ordinary should think fit otherwise the Appropriation to be void The Scandal of the Appropriations was made so great by the Greediness of the Monks and Easiness of the Bishops that I find in the Parliament Rolls 2 H. 4. 51. a Petition of the Commons that no Appropriations should be made for the future but afterwards they came to that Temper which is expressed in the Statute 4 H. 4. And that before those Statutes there was no Necessity of the Endowment of a Vicarage is plain from the Occasion of making them and so it hath been agreed in the Courts of Law in the Case of Britton and Ward But the main Difficulty is to state the Tithes which belonged to the Vicarage and to the Appropriation because there was no certain Limitation either as to Quantity or Kind although generally the great Tithes of Corn and Hay went with the Parsonage and the small Tithes and Obventions and Altarage with the Vicarage The best Rules I can find to be satisfied in this matter are the Endowment or Prescription And where the Endowment is found yet there may be a Prescription for Tithes not mentioned because the Bishop had a Power reserved to increase the Allowance As in the Case of the Vicar of Gillingham who sued for customary Tithes not mentioned in the Endowment and he recovered them on this Presumption That the Vicarage might be augmented with those Tithes and in case of long Possession it is there said to have been often so held and ruled Sometimes there is a Difficulty in the Sense of the Words of the Endowment as in the Case of Barksdale and Smith whether Decima Garbarum in W. implied Tithe-Hay but it was resolved that although Garba seems to relate to Corn de omni Annonâ decima Garba Deo reddenda est L. Edw. Confess c. 8. at least to something bound up and so Lyndwood applies it to Faggots yet the Custom was thought sufficient to extend it to Tithe-Hay and for Tithe-Wood in Renoulds and Green's Case But the greatest Difficulty hath been about small Tithes which is the common Endowment of Vicarages In the Case of Ward and Britton one Point was Whether Lambs were small Tithes or not Noy pleaded Custom for it The Councel on the other side said That small Tithes were such as grew in Gardens but Lambs were a sort of Praedial Tithes however it was yielded that Custom might bring them under small Tithes Another Point about small Tithes was about Saffron growing in a Corn-Field in the Case of Bedingfield and Freak and it was resolved to be small Tithes But the Ground of that Resolution was questioned in the Case of Udal and Tyndal some said it was because Saffron was small Tithes where-ever it grew Others That by the Endowment the Parson had only reserved the Tithe of Corn and Hay But suppose whole Fields be planted with Woad which grows in the Nature of an Herb is this to be reckoned among small Tithes Crook seems to deliver the Sense of the Court so in the former Case but Hutton reports it that it might come to be majores Decimae and Praedial if it came to be the main Profits of the Place And the like may hold as to Hemp Hops Wooll and Lambs It
Right because the Fee-simple abideth in him and his Chapter and so may a Dean and Master of an Hospital And these are called Bodies Politick by Littleton That the Exercise of the Bishop's Power may be restrained by ancient Compositions as is seen in the two Ancient Ecclesiastical Bodies of St. Paul's and Litchfield Concerning which it is to be observed That where the Compositions are extant both Parties are equally bound to observe their parts Thus by the Remisness and Absence of the Bishops of Litchfield from their See by going to Chester and then to Coventry the Deans had great Power lodged in them as to Ecclesiastical Jurisdiction there After long Contests the matter came to a Composition A. D. 1428. by which the Bishops were to visit them but once in Seven Years and the Chapter had Jurisdiction over their own Peculiars So in the Church of Sarum the Dean hath very large Jurisdiction even out of the Bishop's Diocess which makes it probable to have been very ancient but upon contest it was settled by Composition between the Bishop Dean and Chapter A. D. 1391. But where there are no Compositions it depends upon Custom which limits the Exercise although it cannot deprive the Bishop of his Diocesan-Right 4. The Delegate Jurisdiction which was committed to the several Officers of the Bishops Courts and the Manner of their Proceedings is founded upon immemorial Custom In the Saxon times I find no Delegation of Ecclesiastical Jurisdiction for the Bishops sate in person in the County-Courts and there heard Ecclesiastical Causes as appears by the Charter of H. 1. when he pretended to restore the Saxon Laws c. 7. But William I. had settled the Consistory-Court by as good a Law as any was made at that time distinct from the County-Court and required all Ecclesiastical Causes to be there heard and his Son H. 1. did but make a shew of restoring the Saxon Laws and the former Law came to be generally received and so Mr. Selden yields that it grew to be a general Law which shews that it obtained the Force of a Law by Consent as well as by Authority The Consistory-Courts being thus settled and Numbers of Causes there depending and the Bishops being then by H. 2. in the Constitutions of Clarendon strictly tied to Attendance upon the Supreme Courts of Judicature with other Barons there came a Necessity of taking in other Persons with a delegated Power to hear Causes and to do such other Acts of Jurisdiction as the Bishops should appoint For it was still allowed that Iure communi the Jurisdiction was in the Bishop but Iure speciali in auxilium Episcopi it might be delegated to others And so it hath been here received and not only here but it hath been the general Practice of Christendom As to the manner of Proceeding in the Ecclesiastical Courts it is the same in all Parts and built on the same Grounds with those of our Courts of Equity and Admiralty which are as different from those of the Common Law 5. The settling Parochial Rights or the Bounds of Parishes depends upon an ancient and immemorial Custom For they were not limited by any Act of Parliament nor set forth by special Commissioners but as the Circumstances of Times and Places and Persons did happen to make them greater or lesser In some places Parishes seem to interfere when some place in the middle of another Parish belongs to one that is distant but that hath generally happened by an Unity of Possession when the Lord of a Manor was at the Charge to erect a new Church and make a distinct Parish of his own Demesns some of which lay in the Compass of another Parish But now care is taken by Annual Perambulations to preserve those Bounds of Parishes which have been long settled by Custom But the Bounds of Parishes is not allowed to belong to the Ecclesiastical Jurisdiction II. The next Foundation of Law is a General Practice and Allowance i.e. when things of themselves do not oblige by the Authority of those that made them yet being generally received and allowed they thereby become Law to us This we have in an Act of Parliament 25 H. 8. c. 21. wherein it is said That the People of England are only bound to such Laws as are properly their own being in Subjection to no Foreign Legislative Power But were not many things here received for Laws which were Enacted by a Foreign Authority as the Papal and Legatine Constitutions True say they but it is not by Virtue of their Authority but by the free Consent of the People in the Use and Allowance of them And so they are not observed as the Laws of any Foreign Prince Potentate or Prelate but as the customed and ancient Laws of this Realm originally established as Laws of the same by the said Sufferance Consent and Custom and no otherwise So that here we have a full and express Declaration by Parliament That such Canons as have been received and allowed by ancient Custom make a part of our Laws and continue to oblige provided that they be not repugnant to the King's Prerogative nor to the Laws Statutes and Customs of the Realm as it is expressed in another Act of the same Parliament 25 H. 8. c. 19. The Ecclesiastical Laws saith my Lord Coke are such as are not against the Laws of the Realm viz. the Common Law and the Statutes and Customs of the Realm And according to such Laws the Ordinary and other Ecclesiastical Iudges do proceed in Causes within their Conusance So that by the Acknowledgement of this great Oracle of the Common Law there are Laws Ecclesiastical in force among us and Causes to be judged by those Laws and Officers appointed by the Law to proceed according to them The Ecclesiastical Laws and Ordinances are owned by the Statute 27 H. 8. c. 20. 32 H. 8. c. 7. 35 H. 8. c. 19. after the Commission appointed for the Review of them 1 E. 6. c. 2. The Ecclesiastical Courts are appointed to be kept by the King's Authority and Process to be issued out in his Name in all Suits and Causes of Instance between Party and Party where the Causes are particularly mentioned which belong to those Courts and no Alteration is made in them as to their powers but only that the Process should be in the King's Name But some persons in our Age who love to be always starting Difficulties to humour such as bear ill Will to our Constitution have 〈…〉 although this Act was 〈…〉 M. 2. yet that Repeal 〈…〉 â—ac 25. n. 48. therefore 〈…〉 Stat. 1 E. 6. is 〈◊〉 But the plain and short Answer is this That there was no need of any Debate about the Repeal of the Statute of E. 6. after the first of Q. Eliz. because then the Statute 25 H. 8. c. 20. was expresly revived wherein the Bishops were impowered to act as before they might have done according to the Laws and