censured 204 Arbitrement what 79 Armes and the cases incident 99. how gotten 100. how to be borne 101 102 Armour by whom to be made 60 Artificers immunity from service 41 Auditors denied that immunity which professours enjoy 40 Aventines paines in compiling his Annals 169 Augustus why so called 108. his title to the Empire ib. Augustine the Monke 142 Avocation of causes inconvenient 131. 132 Aurum glebale what 45 Authenticks what 50. why so called ib. their contents seq B Baptisme how primitively administred 176 A Baptismall Church what 177 Barcinius the Collectour of the first Volume of the Decretals 75 Barren ground what 223. vid. Waste What ground to be accounted harren 224. Absolute and Comparative 223. how distinguished from Heath 225. Barren money what 224 Bastards by law those that are borne eleven moneths after the decease of the womans husband 55. severall sorts of Bastards 244. not to beare their Fathers Armes 245. nor to inherite ib. how they might be legitimated 146 Bastardie what 243. the effects thereof 245. to what jurisdiction the triall thereof belongeth 246 propounded either incidently 247. or principally 248. Generall bastardie defined ib. speciall defined 249. refuted 250. both of Ecclesiasticall cognisance 251. as is proved by severall precedents 251. 252 Battaill Abbey by whom founded and how endowed 190 Bawds how punishable 53 Benedict the first Founder of cloystered Monkes 187 Benefices how long they may be vacant 81. not to be impaired during the vacancie 82. some appropriated to Bishops and why 216 Bequests vid. Legacies Bertricks Will 194 Berytus the priviledges thereof 43 Bigamie 83 Bishops why so called 34. their power and jurisdiction 35. and degree 120. 121. place in Parliament 159. 160. their power in Ordination of Clerkes 57. in Consecration of Churches 191. 192. 193. seq Chappels 58. in Division of Church dues 154. in decision of controversies 54. in permission or prohibition of building Churches 191. and endowing them 194. and filling them 195. 196. seq their manners 51. 52. who to be elected 64. not hunters nor severe 85. to be resident 58. 65. not to be called before a temporall Iudge 65. nor deteine the Tythes of any Benefice by them founded 206. 207. nor passe them over to Lay men 208. in what cases they may hold them in fee. ib. their primitive endowments 209. 210. their different right in Tythes and demeanes 215. they somtime present at Patrons Wils 194 Bishop of Romes priority 66 Blasphemie capitall 59 Boniface the 8. Collectour of the second Volume of the Decretals 75 Border grounds 61 Boughes of great trees tytheable 229. 230. c. not accessories to the trees 233. Bounds of Parishes of Ecclesiasticall cognisance 151. vi Parish But of Bishopricks temporall 155 Brethren of the whole blood preferred before others 60 Briberie how punished 23 24 Burglarie how punished 21 Burners of houses how punished 19 C Cacus his fact 157. applyed 158 Canon Law what 73. divided 74. vid. Law Canons of Nice 153. of Antioch 154. of the Apostles questioned 194 Cardinals originall 152 Captives 27. feigned by the Law to be dead when they are taken 129 Cassiopea's new Starre 170 Castalia Castle-ward what 70 Castellians who 47 Censures to be judicially executed 85 Cessers for what instituted 44 Ceremonies used at the dedication of a Church 191 Chamberlaines place 46 Chancellours what 115 116. how they differ from Commissaries ib. their antiquity ib. Lord Chancellour why provided of Assessors 275 Changes of Church lands 57 Chappels how to be built 58 Charles Martel vid. Martel Children not to be punished so severely as men 85. after divorce how to be educated 62. their maintenance how it may be provided for 263 Chorepiscopi their office 153 154 Churches affinity with the Common-wealth 211. their priviledges 34 293. Prescription 62. building 65 66 not to be built without the consent of the Bishop 193. nor endowed 194. Manner of dedication 52. 191. their lands not to bee alienated 52. 54. 63. nor goods immoveable 56. nor vessels 64. yet may they be exchanged 57. at the Bishops disposall 193 194. Churches formerly both few and meane 197 Church dues how divided 153 154 Church peace-breakers how mulcted 178 Church-robbers curse 172. 173. the crime fatall to kingdomes 175 Church-shot 138 Circumstances considerable in punishing 99 Civilians disrespected 274 Civile Law vid. Law Pope Clement's sentence for the K. of Sicily 113. Clementines what 75 Clergies orders 54. most beneficiall to the Prince 186 Clerkes why so called 34. who to be admitted 65. where to pay for admittance 57. their behaviour and number 51 52 53. strictnesse of conversation 184. to be reverenced 117. not to hunt 85. nor to medle in civill affaires 82 their immunity 64. 66. how to be judged 60. by whom 65 Cloistered Monkes their originall 187. Priviledges 188 Clients compared to Sysiphus 132 Cnutes lawes 140 Code what why so called why compiled 31. how distinguished from the Digest 32. 33. contents s for whom most usefull 49 Cognisance Ecclesiasticall and Temporall 158. vid. Ecclesiasticall Collations the Sections of the Authenticks 50 Collectours of subsidies how to be punished for exacting 14. their office 38 Colours their dignitie in Armory 102 Combats permitted by the Common law 86 Commissaries what 116 Common-wealth allied to the Church 211. consistes of two parts 271. ruled by peace vid. warre ib. Competency to be allowed to the Minister 95. 196 Commutation of Church lands how formerly tolerated and how in the present age 210. 211 Confiscation in whole or in part 25. goods confiscate how to be disposed 37 Connexitie of causes not to be taken away 148. 157 Consecration of Churches with what ceremonies performed 191 Consent of parents requisite co the Marriage of Children 67 Consistories why granted 117 Constantines great bountie towards the Church 182. his law concerning Executors 267 Constantinoples priviledges 43 Consull what 45 Contracts Marine 88. 89 Contribution for ejectments 92 Controllers office 39 Controversies how decided 9 Corruptions in judgement how punished 20 Corses not to be prohibited buriall 6 Cozenage how punished 21 Councellours vid. Advocates Councels decrees as lawes 66. Councell of Nice 153. of Antioch 154. Lateran of Gangra and Antioch make Bishops disposers of Church goods 194. as also the Toletan Bracaran c. 195 Courts Spirituall abbridged of what they formerly have had 114. 115. 146. 147. why first granted 117. Court of Chancerie 275. of Requests 276 Crimes extraordinary 19. 20 Criminall matters triable in Ecclesiasticall Courts 48. 115 Crosse with what ceremonies set up in Churches 191. used for want of Churches 197 Curiositie of School-men prejudiciall to the Church 162. 202 Curse the More and the Lesse 172. The manner of Cursing 173. The forme of the generall Curse with Bell Booke and Candle 174 Customes of tything of Ecclesiasticall cognisance 147. 148 Cystercians exempted by the Pope â—00 but compelled by the Parliament to pay Tythes 143 D Damages why not cessed in cases of consultation 127. treble
themselves which being once appropriated to God could be only his but to the dispensation of them according to which it was necessarie that the Bishop should dispose of the presentation and fill the places with such Inbumbents as might enjoy them in Gods Right and execute their function answerably to the Founders good purpose This Act of the Bishops being as by them it was accounted more a matter of Care than Power was usually understood by the moderate expressions of Nominare Prâ—sent 〈…〉 e or Commendare still saving the Right to God and to themselves only such a conscientious disposition thereof as might redound to his greater glorie This power the Bishops transferred to the Lay Patron yet so as it should be necessarie for the Patron to have recourse to the Bishop that hee might qualifie his Clerke for the Rectorie by ordination and that it should be lawfull for the Bishop to devest the Patron of this Right according as hee should be moved by such causes as were found to be of a considerable importance so it seemeth by the Law where the Patrons Right is said to be such a power in qua eos Ecclesia huc usque susti 〈…〉 t. De jur Patron C. Quoniam The reason that moved the Diocesan to let the Patron share with him in this prerogative was for the Patrons encouragement for so it must be conceived of this right that it was an honorable priviledge therfore the Abbot in his definition did well to call it jus honorificum This reason in respect of the Patron tooke place because of the great need which then was of those which were able and would be willing to erect or endow a Church for as much as all places at their beginnings were ever unfurnisht for we shall finde in some that they had no Churches at all but instead of a Church they were content to say prayers under a Crosse in the open field this is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonica gentis 〈…〉 d in 〈…〉 ullis nobilium bonorúmque hominuÌ„ pradâ—â—s non Ecclesiam sed sanct a Crucis signum Dowino dicatum cum magno honore almum in alto erectum ad commodam diurna orationis sedulit atem solent havere Hodâ—peric Hierosolym Wilibald Ext at ad Canisium Tom. 4. Antiq. Lect. part 2 pag. 486 Edit Ingolst 1603. In other places there might perhaps be Churches but sometimes they were no better than those which are spoken of by Asser B of Shireburne in the life of K. Alured Churches of so poore and meane a structure that when the Candles were set before the Reliques they were oftentimes blowne out by the wind which got in not only per ostia Ecclesiarum but also per frequente parietum rimulas as the Author there hath said in somuch that the ingenious Prince was put to the practise of his dexteritie and by occasion of this Lanternam ex lignis bo vinis cornobus pulcherime construere imperavit by an apt composure of thâ—â— hornes in wood hee taught us the mysterie of making a Lantherne made the one by Richard the second the other by his successor These exigencies were the causes which mov'd the Bishops to give all encouragement to the Patron and admit him into the honorable imploymnet of Filling the Churches but so as upon occasion given he might resume this right to himselfe which upon the the abuse thereof hath accordingly followed That the Laitie could never yet abide the Clergie is noted in the Law for an old saying De immunit Eccl. C. Clericis lib 6. and Basil the Emperour in the 8. Synod could say of the Lay people of his time Adeo multos malitia in insaniam accendit c. ut quòd pedes sint minimè cogitantes legem ponere velint oculiâ— that malignitie had so set on fire the madnesse of some that forgetting themselves to be the feete they would needs teach their eies to see But we are more happy and need not make this our owne complaint being no otherwise troubled than with a very learned and most religious Laitie But how the Lay Patrons heretofore behaved themselves in the matter in hand we shall see Though I mention only the Lay yet I excuse not the Clergie Patrons otherwise than thus that they were but few and not so likely to wrong the Church in regard of their proper interest The Patrons abused their libertie many waies if we consult with the severall Councels which have provided against this we shall find them sometimes presenting illiterate and unworthy men Priests of the lowest of the people men that can thinke so meanly of the Ministerie as to make suit to come into the Priests office for a piece of bread 1. Sam. 2. This is noted in the Councell at Colen An. 1536. where they are said to present their owne sonnes and kindred citra ullum delectum aut discrimen scientia morum ac atatis There also it is complained that there were some qui admotis nomen tantuÌ„ relinquunt that promoted the Incumbent only to a bare name reserving the revenue to themselves ausuquodam sacrilego as they are there censured by the Councell and some were so exorbitant in this kinde that they would present their yong boyes and children as if by the same law of Nature they could beget Priests and men Concil Palent Const 14. This is litle better then that of Miâ—ha the man of mount Ephraim qui ipse sibi fecâ—â— sacrificuluÌ„ though this might be well endured that the Sonne should make the Priest when the Mother the Founder had made the Gods But this was done too when there was no King in Israel and every man did that which was right in his owne eyes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 otherwise so abominable an act could never have pass'd as the son of Gersom hath observed upon the place The Councell of Salizburgh under Martin the 5. telleth us of certaine Patrons that used to compound with the Incumbent for a Moyerie of the profits and this in the German Councell under Conrade is styled vulnus cancrosum et simontacum And see to this purpose the Councel of Wormes in 886. Vt Presbyters Others not contented with a part of the obventions made the bargain to have halfe for in the second Bracaran Councell C. 6 we finde some that built their Churches non prode v 〈…〉 fides sed pro quastus cupiditate not for devotion but filthy lucre that they might share alike with the Incumbent in the offerings of the Church Sometimes it fell out that the same Church had severall Patrons and these in the vacancie for the most part disagreed about the Presentee and this was a great inconvenience for in the interim during their discord the Bishop was to take away the Reliques and seale up the Church Some Patrons for their Presentations expected to be gratified with gifts and largesses and the like and
the Code THe first Booke of the Code treateth of Religion and the Rites and Ceremonies thereto belonging whereof I said there was no speciall Tractate in the Digest saving that it devideth the publick right into that which concernes the Church and Church-men and the Magistrates of the Common-wealth prosecuting the later branch thereof onely and omitting the first because out of that Heathenish Religion which was used in those ancient Lawyers dayes and those superstitious Rites whereof their Bookes were full nothing could be taken that might serve for our Religion whereupon he instituted a new discourse thereof in the Code beginning first with the blessed Trinitie one in essence and three in person wherein he sets downe a briefe summe of our Christian faith agreeable to the doctrine of the Prophets and Apostles and the foure first generall Counsels the Nicene Constantinopolitan Ephesine Calcedon forbidding any man publickly to dispute or strive thereabout taking occasion upon the Nestorian heresie which not long before had sprung up and had mightily infected the Church which Justinian by this confession of Faith so published to the whole world and a penall Edict joyned thereunto hoped to represse After hee hath set downe a full and sound confession of the Christian faith conformable to the Primitive Church next hee addeth a title of the holy Church it selfe and of her priviledges which either concerne Ecclesiasticall mens persons themselves or their state and substance or the actions one Ecclesiasticall man had against an other or with or against Lay persons where also he prosecuteth the degrees of Priests or Ministers their offices orders and how the same are to be come by that is without bribes or Simonie or other worldly respect save the worth of the person onely and the rights of holy places Priests in the Law are called from the Latine Sacerdotes either because their office was Deo saera dare to sacrifice to God or else because they were consecrated and as it were severed from the rest of the people and given up to God they were also called Elders answerable to the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 either for that they were so in age * In Authent de sanct Episcop § Presbyterum Collat. 9. the Law having provided that no man should be promoted to the dignitie of a Priest till hee were 35 years old or else because they ought to be such in manners and carefull carriage of themselves Amongst Priests or Ministers Bishops have the first place who are as it were the †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Overseers and Superintendents of the rest so called of their watchfulnesse care labour and faithfulnesse in teaching the people and doing other duties which they owe unto the Church The lowest degrees of men in the Ecclesiastical Hierarchy were the Clerkes as the word Clericus is restrein'd to a narrower acception For in the generall it is most properly applyed to all degrees of the Clergie and is a terme contradistinct to the Laitie and they are called Clergie from the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quia de sorte Domini sunt vel quia Dominus sors est part Clericornm either because God is their portion and lot or because they are his as Papias hath observed To Bishops Priests and other of that ranke did appertain the care of Hospitals whereof some were for Orphans some for Infants some for impotent and diseased persons some for poore people some for strangers and other like miserable persons and therefore together with the title of Bishops and Clerks is joyned the title of Hospitals or Almes-houses In place next after the Bishops themselves comes their power and audience for albeit the chiefest office of a Bishop is to instruct the people in the doctrine of the Word and in good example of life yet forasmuch as all will not be obedient unto the Word neither brought by the persuasion thereof to good nurture and to be kept in order and the eminencie of the degree wherein the Bishops are placed is not sufficient to keepe the people in obedience without some power and jurisdiction and because the Church it selfe is the mother and maintainer of Justice therefore there is by the Emperour himselfe and his predecessours as many as professed Christianity certain peculiar jurisdictions Ecclesiasticall assigned to the Bishops more worthy than the Civile over persons and causes Ecclesiasticall such as touch the Soule and Conscience or doe appertein to any charitable or godly uses and over the Laitie so farre forth as either the Laitie themselves have beene content to submit themselves unto their government that is so farre as either it concernes their Soules health or the outward government of the Church in things decent or comely or that it concernes poore and miserable persons such as widowes orphans captives and such other like helplesse people are or where the Civile Magistrate cannot be come by or doth voluntarily delay judgement in all which anciently a Bishop was to performe double faith and sanctity first of an uncorrupt Judge and then of a holy Bishop But in many of these matters in these dayes the Laitie will not suffer themselves to be controll'd and therefore hath taken away most of these dealings from them yea even in charitable causes Immediately followeth a title of Hereticks Manichees Samaritans Anabaptists Apostataes abusers of the Crosse of Christ Jewes and worshippers of the hoast of heaven Pagans and of their Temples and Sacrifices whom the Bishop is not onely to confute by learning but also to suppresse by authoritie for he hath not the spirituall Sword in vaine The Hereticks Jewes and Pagans shall not have Christian men and women to be their servants that such as flie to the Church for Sanctuarie or claime the ayde thereof shall not be drawne from thence unlesse the offence be haynous and done of a pretensed and purposed malice in which case no Immunity is to be allowed them but wicked people are to be punished according to their desert agreeable to the word of God it selfe which would not have his Altar to be a refuge unto the wicked And so farre of that part of publick right which appertaineth to the Priests or Ministers and their Function which was omitted in the Digest but prosecuted in the Code Now it followeth that with like brevity I run over the three last Bookes of the Code which themselves were rather shadowed in the Digest in the title of the right of the Exchequer than in any just proportion handled SECT 3. The Argument of the 10. Booke of the Code THe first therefore of them setteth out what is the right of the Exchequer and in what things it standeth as in goods excheted because there is no heire unto them or that they are forfeited by any offence worthy death or otherwise How such as are in debt to the Exchequer and their suerties are to be sued Of the right of those things which the Exchequer sels by outcry where he that offereth most
matter of the ninth Collation THe ninth and last Collation conteineth matter of succession in goods that as long as there be any Descendent either Male or Female so long neither any Ascendent or any Collaterall can succeed and that if there be no Descendent then the Ascendent be preferred before the Collateral unles they be brethren or sisters of the whole blood who are to succeed together with the Ascendent but in Ascendents those are first called which are in the next degree to the deceased then after those which are in a more remote degree that in Collaterals all be equally admitted which are in the same degree and of the same Parents whether they be male or female That the lands of any Church Hospitall or other like Religious place be not sold aliened or changed unlesse it be to the Princes house or to or with an other like Religious place and that in equall goodnesse and quantitie or that it be for the redemption of Prisoners and that they be not let out to any private man more than for 30. years or 3. lives unlesse either the houses be so ruinated that they cannot be repaired without great charges of the Church or other religious houses or that it be overcharged with any debt or duties belonging to the Exchequer and thereby there commeth small revenue to the Church or Religious place there-out in every of which cases it is lawfull to let out the same for ever reserving a yearly competent rent and other acknowledgement of other soveraignty therein That the holy vessels of the Church be not sold away unlesse it be for the ransoming of Prisoners or that the Church be in debt in which case if they have more holy vessels than are necessary for the service of the Church they may sell those which are superfluous to any other Church that needeth them or otherwise dispose of them at their pleasure for the benefit of the Church or other holy place whose they are Where Usurie in processe of time doth double the principall there Usurie for the time to come doth cease and those particular payments which afterwards doe follow are reckoned in the principall What kinde of men are to be chosen Bishops such as are sound in faith of honest life and conversation and are learned that such as chuse them sweare before the choyce they shall neither chuse any for any reward promise friendship or any other sinister cause whatsoever but for his worthinesse and good parts onely That none be ordeined by Symonie and if there be that both the giver taker and mediator thereof be punished according to the Ecclesiasticall Lawes and they all made unworthy to hold or enjoy any Ecclesiasticall living hereafter That if any at the time of any Bishops election object any thing against him that is to be elected the election be staid till proofe be made of that which is objected by the adversarie against the partie elected so that he prove the same within three Moneths and if any proceeding be to the consecration of the same Bishop in the meane time it is void That the Bishop after he is ordeined may with out any danger of Law give or consecrate his goods to the use of the Church where he is made Bishop and that he may give such fees as are due to the electors by law or custome That Clerks be not compelled to undergoe personall functions and services of the common-wealth and that they busie not themselves in secular affaires and so thereby be drawn from their spirituall function That Bishops for no matter or cause be drawne before a temporall Judge without the Kings speciall commandement and if any Judge presume to call any without such speciall warrant the same is to lose his office and to be banished therefore That no Bishop absent himselfe from his Dioces without urgent occasion or that he be sent for by the Prince and if any doe absent himselfe above one yeare that he shall lack the profit of his Bishoprick and be deposed from the same if he returne not againe within a competent time appointed for the same What maner of men are to be made Clerks such as are learned and are of good Religion of honest life and conversation and are free from suspition of incontinencie that no Minister be lesse than 35. yeares of age and that no Deacon or Subdeacon be under 25. that all Clerks and Ministers be ordeined freely If any build a Church and indow the same that he may present a Clerk thereto so that he be worthy to be admitted thereto but if he present an unworthy man then it apperteineth to the Bishop to place a worthy man therein If any Clerke be convicted to have sworne falsely hee is to be deprived of his office and further to be punished at the discretion of the Bishop That Clerks be convented before their owne Bishops and if the parties litigant stand to the Bishops order the Civile Judge shall put it in execution but if they agree not upon the judgement then the Civile Judge is to examine it and either to confirme or infirme the Bishops order and if he confirme it then the order to stand and if not then the party grieved to appeale If the cause be criminall and the Bishop finde the party guiltie then the Bishop is to degrade him and after to give him over to the secular power the like course is to be held if the cause be first examined before the temporall Judge and the partie found guiltie for then hee shall be sent to the Bishop to be deprived and after againe shall be delivered to the secular powers to be punished That Bishops be convented before their Metropolitans That such as in Service time do abuse or injure the Bishop Si vero etiam Litaniam concusserit capitale periculum sustinebit De Sanctissim Episcop Deo § Si quis cum sacra minist or any Cleark in the Church being at divine service be whipt and sent into banishment But if they trouble thereby the divine Service it selfe they are to dye the death for the same That Lay men are not to say or celebrate divine Service without the presence of the Minister and other Clerkes thereto required That such as goe to Law sweare in the beginning of the suit that they haue neither promised or will giue ought to the Judge and that usuall fees be taken by the Advocates Counsellours Procters or Attournies and if any man take more than his ordinary fees he shall be put from his place of practise and forfeit the foure double of that he hath taken That the 4. generall Councels be holden as a Law and that which is decreed in them That the Bishop of Rome hath the first place of sitting in all assemblies and then the Bishop of Constantinople That all Clergy mens possessions be discharged from all ordinary and extraordinary payments saving from the repairing of Bridges and High wayes where the said possessions doe
to be otherwise then as Bellarmine hath disputed whose opinion it is that these Fasts may be fetch 't from the Apostles times and that one of these foure is mentioned by S. Luke in S. Pauls voyage to Rome Act. 27. though the Syriack Paraphrast in that place plainely setteth downe for the Greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 calling it a Fast of the Jewes not Christians But the great and learned Cardinall in his devotion to sacred Orders tooke any opportunitie to make these Solemnities in every circumstance Apostolicall Foure fit times in the yeare are limited for the same where also is set downe how they are to be qualified which are to bee ordered what triall or examination is to be had of them what age they are to be of and what gifts of body or minde they are to be indowed withall what Sacraments may bee reiterated what not that Ministers sons are not to succeed their Fathers in those benefices wherein their Fathers immediately before were Pastors or Governours lest happley thereby there might In what manner and with how much care and Christianitie these Fasts have been heretofore observed it may bee noted out of the second Councell of Mâ—lâ—aine Tit. 1. Decret 22. where the Bishop is to command that upon the Sunday before these Fasts Paroâ—ht non solùm solenne illud jejuntum denunctent verumetiam in sua unusquisque eorum parochtali Ecclesia supplicationes Litaniasque pie ac religiose vel intùs habeat vel prosequente fidelium multitudine foris Ecclesiam sicut moris est obeat ut Dei ope imploratâ tum Episcopus in eorum delectatu quibus ordenes conferet Spiritûs Sancti lumine illustretur tum illi quibus conseruntur in vitae sanctitate doctrina religiosisque virtutibus proficiant In the fourth Councell of Millaine is set downe out of Leo the forme of bidding these Fasts in the Church Quod sacrorum temporum ratio c. and afterwards Quartaigitur sexta feria Sabbato â—eâ—unemus frequentes in Cathedrali Parochialique Ecclesia ad litanias Orationémque conveniamus quò sacris illis Feriâ—â—â— cibo abstinentiores esse debemus â—o abundantsore eleemosynarum liberalitate erga Christs pauperes effusiores sinius tum Sabbato sub vesperum orationem Parochialem communem celebremus qua pro spe foelicitatis aterna ad quam per fidem currimus pro sacra ordinatione quam eo die a Reverendissimo Episcopo haberi solenne est pro â—is commodis qua singulorum annorum revolutione consequimur Deo omnipotents gratias agamus c. Tom. Concil 4. Edit Bin. These foure Fasts at this present day are observed in our owne Church and are known unto us by the name of Emberweekes And so I finde it in Thomas Becon by opinion of much people these dayes beene called Imber-dayes because that our elder Fathers would on these dayes eate no bread but Cakes made under ashes so that by the eating of that they reduced into their mindes that they were but ashes and so should turne againe and wist not how soone c. And that these Imber-dayes were duely and devoutly observed by our Ancestours wee may bee perswaded out of the Lawes of King Cnute where it is said Chap 16. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That every man observe the Fasts which are commanded with all earnest care whether it be the Imber Fast oâ— the Lent Fast or any other Fast And Chap. 17. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where the Law saith That it is meete and right that at these Fasts all malice being laid aside all men should bee at peace And concerning the outward observance in the 43. Chap. it is said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Evill it is that upon a fast day a man should eate any thing till Meale time and it is much worse if hee should eate flesh meate This was the Religion of our Ancestours and if ignorance could admit of so much devotion how much more would bee expected from these knowing times be claimed a succession or inheritance in the same that no bondmen or accountants men distorted or deformed in body bigamists or twice married men bee admitted to holy orders Of wandering Clerkes and how that they are not to be admitted to minister in an other Diocesse than where they are ordered without the Dimissorie Letters of the Bishop under whom they were ordered Of Archdeacons Archpriests Sacrists Vicars what they are and wherein their particular offices doe consist Of the office of Judges in generall and their power whether they be Delegats Legats à latere or Iudges ordinarie Of difference in Jurisdiction betweene Ministers Ministers and what obedience the inferiour Ministers are to yeeld unto their superiours Of Truce and Peace which Ecclesiasticall Judges are to procure that truces be kept from Saturday in the Evening untill Munday in the Morning and that there be no fighting from the first day of the Advent until the eight day after Twelfe tide and that warre likewise doe cease from the beginning of Lent untill the eight day after Easter under paine of Excommunication against him that presumeth to doe the contrarie and that in time of warre neither Priests Clerkes Merchant-men country men either going to the field or comming from the field or being in the field or the cattell with which they plough or the seed with which they sow be hurt or violated Judges before men enter into the dangerous events of Law are to perswade the parties litigant by private covenants and agreements to compound the controversie betweene them wherein if they prevaile not then the parties are to provide themselves of Advocates Proctors or Sindects according as they are private men or bodies politick to furnish their cause and direct them in proceeding If any Church hath beene hurt in any contract of bargain or sale or in demising of any Lease or by the Proctors negligence it is to be restored againe into her former state to alledge and plead that for it self which is agreeable to Law conscience The like grace is to be granted to all other Litigants whatsoever who have by feare or violence or any other like unjust cause beene hindered from the prosecution of their right If any seeing a suit like to be commenced against him doe either appeale before he be served with Proces or alienate away the thing wherupon the suit was like to grow he is to be compell'd to hold plea of the same cause before the Judge from whom he did appeale and to answer his adversarie as though still he were owner of the thing hee did in policie sell or alienate away Many times things which otherwise can have no speedy end by Law are compounded by Arbitrement Arbitrators ought to be odde in number that if they disagree that which is concluded by the greater part may prevaile An arbitrement is a power given by the parties litigant to some to heare and determine some matter in
supposititious I only know that they may bee so not that they are and however it be dull to entertaine any thing that shall be obtruded yet the rejection of ancient Authors and Councels should be warily concluded upon Thus much notwithstanding is recorded that by reason of the Arian incendiaries a compleat number of the Canons of this Councell was so rarely found that Athanasius himselfe who was present at the Synod was forc't to send into these parts to the Bishop of Rome that then was to desire from him a perfect copie because in the Easterne world few or none had escaped the fire of the Arians This wee have out of those Epistles which are supposed to have past betweene Pope Marke and Athanasius concerning the burning of the decrees of this first Nâ—câ—ne Councell and if these be true the Canons here are the lesse to be suspected But against the credit of those Epistles the Cardinals Bellarmine and Baronius have consented and it may well be thought they have some cause for that these Canons much availe their faction and depend not a little upon the authoritie of these Epistles yet their reasons against these Epistles are for the most part chronologicall and because such as these are subject to much hazard therefore our confidence in beleeving may be arbitrarie at our own disposing But be these Canons how they will yet a most expresse monument of this Quadripartite division of Church dues may be noted out of an Arabick Canon of the Councell of Antioch Canon 25. I say an Arabick not for curiositie but because I finde this matter more fully there set downe for the Greeke saith thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That the Bishop shall have the Church dues in his power that he may dispose of them to every one that needeth religiously and in the feare of God But the Arabick Canon more distinctly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That the Bishop shall have at his disposing the Church dues and revenues to the end that he may divide and distribute them to his Clergie to the Parishioners for the repairing of Churches to the poore and needie and that he may take to himselfe what shall be necessarie for his owne expence c. This Quadripartite Division was used in most places but most principally in the RomaÌ„ Church For in some other the Bishop had the third part See Filesacus in his Booke De Sacra Episcoporum Authoritate Concerning the originall of a Parish in these two former Acceptions it may be acknowledged to bee a device of the ancient Roman Bishops and to have beene derived from them to other Nations But a Parish may be also taken for such a part of the Diocesse which is limited to some residentiarie incumbent allowed by the Bishop and maintained by the Church dues in his owne right And this consideration of a Parish most of all agreeth with those which we now have And it may very well be supposed that these later Parishes have had their beginning from the inconveniences of the former And the designement and limitation of these how ever it might have speciall encouragement from the devotion of lay men yet the principall stroke was alwayes given by the Ecclesiasticall to whom it pertained to consecrate the Churches and make them baptisteriall And that the dividing of Parishes should of right belong unto Ecclesiasticall men it may be the more reasonable because the first that ever divided any Parishes were the Roman Bishops and they did not onely so but also gave direction to other Prelates in their severall Provinces to doe the like ospecially if that be true which wee have formerly cited out of that Epistle of Pope Denis to the Spanish Bishop However Alexander the third C. Aâ—aritia De Prabend Dig. gave command to the Canons Regular of Yorke Diocesse that they should not presume to divide Parishes sine consensu Archiepiscops And some encouragement may he had from a decree made in a Synod holden at Westminster about the yeare 1147. which saith c. 4. Nullus Abbas nullus Prior nullus omnioò Monachuâ— aut Clericus Ecclesiam siâ—e decimam seu qualibet beneficia Ecclesiastica de dono laâ—ct accipiet sine propriâ— Episcopi authoritate consensu quòd si prasumptum fuerit irrita erit donatio hujuscemodi Chron. MS. Biblioth Bodleian And the like intimation is given in an other Councell holden at the same place in the yeare 1149. called by the most Reverend Father in God William then Lord Archbishop of Canterbury There it is said cap. 10. Vt nulla persona-Ecclesias vel decimas sen qualibet alia Ecclesiastica beneficia det vel accipeat sine consensâ— authoritate Episcopi If wee apply these decrees to the matter in hand wee may deduce some thing answerable to that which is inquired Besides Lay men were not to medle with the ordering of Tythe-payment and yet in this division of Parishes a principall respect was had to the consideration of Tythes and therefore it was that Parishes were limited with such great care and curiositie For Bartol said That if it were doubted concerning a house in what Parish it should stand it must bee conceived to bee of that into which it opens if it opened severall wayes a posterne gate was not respected but it was judged to belong unto that Parish into which it opened at the chiefe Gate At what time this last kinde of Parishes began else where wee enquire not when they began here at home wee finde not unlesse wee understand such as these in the Division of Honorius however they must be in use before the dayes of Edgar as it seemeth by the Sixon Lawes of that time See the Lawes of Edgar cap. 1. although otherwise the thing it selfe be more ancient and descends from the counsell of Saint Paul which he gave to Titus to appoint Tit. cap. 1. v. 5. Elders in every Citie But that Cities and Countries again are divided into severall Parishes it was the ordinance of Pope Dionysius about the yeare 266. and from him derived into this and other Realmes and the distinction thereof was chiefly devised that it might be knowne of what congregation every people were and that so they might be trained up in the Schoole of godlinesse under their owne Pastor or Minister But that now the division of Parishes doth serve to other politick uses it comes not of the first institution thereof which was meere Ecclesiasticall but it groweth out of a second cause that is because being so fitly and aptly primarily divided by Ecclesiasticall men as they are the Princes therefore did use the opportunity thereof for temporall services subdividing the same againe into many Tythings or like smaller divisions for the more speedy service of the King and better ordering of the common-wealth Which our ancient Fathers well knowing never called the same in question acknowledging therein the good they had received from Ecclesiasticall men by this partition of Countries into Parishes but men
at Lay mens hands by the mediation of the †Diocesan whose office it was to be a meane betweene the Religious house and the Incumbent for in indifferent Where we speake of the B habite wee have safely retained the words of the Euchologue 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for that wee finde them confusedly and uncertainely rendred The latter may import Humerale the former seemeth literally to bee as much as Collare but Gretser was very angry with Iunius for translating it so in his Notes upon a fragment of Curopalate Quasi de Canibus sermo esset as if saith the Jesuite Master Young had beene talking of Dogges But see what Gretser himselfe saith to the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in his Comment upon Codin cap. 16. To returne to our Diocesan The Right and Title to a Church and that which belongeth therunto is more peculiarly acknowledged by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or setting up of the Crosse the performance whereof was in this manner 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Euchol 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Word being brought to the Patriarch concerning the Church that is to bee built Letters are directed either to the Exarch or to some of the Bishops to request that the Church may be founded consecrated and entitled to the Patriarches 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then commandement is given that a crosse of wood be provided upon which the Patriarches Secretaries must set down upon the one side The Patriarchs 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 consecrated in the name of such a Saint in such a Citie preserv'd by God in such a Province of proper will by such or such the most holy and Oâ—cumenicall Patriarch On the other side During the Reigne of such and such our most Religious Princes in such a Moneth of such a yeare Then the Crucifixe must be sent to the place where the Church is to be erected and there the Bishop by whom it is conveighed saith the forenamed Service which is used at the founding of a Church and when hee maketh the Consecration the Crosse must be set up behinde the holy Altar there being prepared for it some lofty structure fitted with a concavity to receive it either of Stone Iron or Brasse as it may be seene in the great Church By the great Church understand that of S. Sophia in Constantinople Thus the Euchologue for the Greeke Church The like to this for as much as concerneth the substance is observed in the Latine but the Ceremonies there are more tedious and elaborate The Reader that hath so much time and patience shall finde this true in their Pontisicall By the setting up of the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the right of the new Church was conveyed to the Patriarch or Bishop as by an especiall title so that now for the most part things were altogether disposed by but nothing at all without the Bishops jurisdiction And wee alwayes adde The Bishop for though the Patriarch be especially named in the Euchologue it be also a controversie betweene them concerning this Title as it is taught by Balsamon upon the 31. of the Apostles Canons yet that the Bishop if not onely yet also had this right it is evident by the Emperours Novell And concerning the conveyance of this Right by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 see what is set downe by the Patriarch of Constantinople in the case of Iohn Bishop of Lepanto and for this see the Ius Graeco-Romanum Tom. 1. Lib. 3. Sent. Synod 1. p. 232. 233. c. Edit Francofurt Ann. 1596. See also that of Manuel de jur Patronat p. 242. And that the Patriarch or Bishop should challenge this jurisdiction over the new Church it seemeth most reasonable For what did the Lay Patron do more than a man of Israel who brought a Lambe to the doore of the Tabernacle but the Priest made it an Offering and an Attonement The Patron indeed perhaps might chuse the place but till the Prelate came and sanctified the ground it might as well be a Denne of Theeves as a house of Prayer The Patron might bring the stones but the Bishop laid the foundation or if the workeman put the materials together made up a house the B. made that a Church till then nothing was but the breathles body of a Temple the soule being yet to come from a diviner influence of the Diocesan Therfore it was that the priviledge of a new Church followed not the building but the consecration of it as the Condition is worthily observed by the devout learned K. Alured in his Lawes C. 5. which is Be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the priviledges of Churches The King saith that if a man pursued by his enemie flie to the Temple 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nân man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 no man may take him away for the space of a seven Night 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. if he be able to live for hunger c. Other and greate immunities the King there granteth to the Church but the Law had this caution 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 This freedome we give to every such Church as shall be hallowed by the Bishop Wee have seene upon what just and valuable considerations the Diocesan might challenge a Right and Title to the New Church by foundation and erection In the pursuite hereof wee hope to set downe manifest incouragements to argue the use and exercise thereof in the endowment and filling of a Church or Monasterie Therefore if wee looke backwards we shall finde it a Custome well nigh from all Antiqutie that the goods and revenues of Churches have beene alwayes acknowledged to belong of Right to the Bishops disposing Some authoritie for this may be had out of those Canons which are called the Apostles Canon 37. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Let the B. have in his power all the goods of the Church and let him dispose of them as in the sight of God So the 40. Canon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Where also the reason is given 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 For if the pretious soules of men are committed to his care how much more ought hee to bee intrusted with the Church revenues For the authoritie of these Canons it may now be thought too late and to little purpose to speake and yet I have alwaies marvelled who that should be that durst be so bold as to fasten so many forged precepts upon the Apostles and much more that whosoever he were hee could be so fortunate in his fraud as not to be discovered rather in the next Age than in those later times which saw the former at a distance may be thought to know but a little of that which was then done True it is that some of these Canons may seeme to argue neither the Spirit nor Style of that Age in which they pretend to have beene brought forth and yet of others we
are bound to thinke more soberly To say no more we will onely set downe that of the Arabicke Paraphrast who at the end of his translation of these Canons in stead of that which the Greek saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 these things we have delivered unto you concerning the Canons O ye Bishops saith thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is O yee Familie of the faithfull attend 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unto our words and precepts for that they come from the holy Spirit of the living Lord our Care But however it be resolved against these Canons yet that which we have said is also set downe by the Synod at Antioch Can. 24 25. where Note saith Balsamon upon the 25. Canon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the Administration of those things which appertaine to the Church belongeth to Ecclesiasticall men Reade also to the same purpose the 7. 8. Canons of the Councell held at Gangra 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. And 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. where a Curse is past upon all those that presume to give or receive the Church fruits otherwise than by the Bishops dispensation or theirs who by the Bishop shall be appointed thereunto And Steven Bishop of Rome in the second Centurie saith Lâ—cis quoque quamvis religiosi sint nulla tamen de Ecclesiasticis Facultatibus disponendâ— so wee reade rather than Respondendâ— legitur unquam tiâ—buta facultas that it cannot appeare that ever any power was granted to Lay-men though Religious Lay to dispose of Ecclesiasticall goods It is the Bishops observation in his second Epistle and long after him it was repeated in the Councell at Lateran under Innocent the 3. Chap. 44. In the yeare 589. it was set downe in the Toletan Councell Can. 9. that Churches cum suis Rebus should ad Episcopos pertinere And Cyrâ—â— of Alexandria in his Epistle to Domnus saith â—hat the Diocesan for the time being may 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is saith Balsamon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that he may confidently and securely be intrusted with the Church Revenues And because the Bishop had this power over the goods which were conferred upon the Church it seemeth to be a Reason why hee was somtimes present at the last Will and Testament of Benefactors in this kinde for this appeareth by the Will which Berâ—ricke made a Kentish Gentleman of Mepham related by Lambert out of the Antiquities of that place 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 into 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And I give saith the Testator the 10. hides at Streiton to the Minster at Walkenstede And the Land at Falcham after â—ythwares dayes to S. Andrewes for AElfrics Soule their Lord and his Elders so their will was c. And this is said to be done on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. Witnesse Eadgâ—ue the Lady and Odo the Archbishop c. and AEifsie the Priest of Croyden From this Right which the Diocesan had in the dispensation of Ecclesiasticall goods it proceedeth that he was also especially concerned in the Endowment of a Church or Monasterie For a Monasterie the 17 Can. of the 7. Synod saith thus O 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 luâ— Graec. Rom. in Epit. S. Can. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. But see for the Canon â—s Balsamon and Zonaras have it and what they say Be it a Monasterie or otherwise a Church or Oratorie Balsamon saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Founder shall be forced to bring a competencie according as the Diocesan shall approve And how much the Bishop was considered in this matter it appeareth by the 32. Canon of the 4. Councell at Toledo held under Honorius in the yeare 633. No verint tamen conditores Basilicarum in rebus quas itsdem Ecclesiis conferunt nullam se potestatem habere sed â—uxta Canonum instituta sicut Ecclesiam it a dotem ejus ad ordinationem Episcopi pertinere Where it is said that the Founder must know that he shall have nothing to doe neither with the Church nor that which he bestoweth upon it but both shall belong to the Bishops dispensation And this is also cited by Gratian in the Decree 10. q. 1. cap. Noverint In the Bracaran Councell held in the yeare 672. Can. 5. it is set downe that the Bishop may â—efuse to consecrate any Church till he be made sure of a convenable Dotation Memâ—nerit saith the Canon to the Bishop ut non prius dedicet Ecclesiam nisi anteadotem Basilica obsequium ipsius per donationem Chartula confirmatum accipiaâ— nam non levis est â—sta temeritas c. And before this as much was said in the 3. Toletan Councell of the yeare 589. Can. 19. which also was reported in 888. in a Councell holden at Mentz C. 4. Multi contra Canonum constituta sic Ecclesias quas adificaverunt postulant consecrart ut dotem quam eâ—dem Ecclesia contulerunt censeant ad Episcopi ordinationem non pertinere Quod factum in praeteritum displicet in futurum prohibetuâ— sed omnia secundum constitutionem antiquam ad Episcopi ordinationem potestatem pertineant And in the Councell at Cabilon of the yeare 658. Can. 14. whereas the complaint was Quod Oratoria pervillas â—am longo tempore constructa facultates ibidem collata ipsi quorum villae sunt Episcopis contradicant The satisfaction was Hoc convenit emendarâ— ita ut duntaxat in potestate sunt Episcopi Also the Canon Nullus Abbas c. of the Councell at Westminster related before in the matter of Parishes is much to this purpose There we cite it out of a Mâ— Bibloth Bod. which is a continuation of Marianus Scotus Wee finde it also in the Continuation to Florent Wigorn. by occasion whereof looking better into our Manuscript Marian wee finde that it agreeth for the most part with this Florence of Worcester But further to argue this dispensative Power in the Diocesan he that is willing to observe may finde severall passages both of late and elder times among the Records of Sarum a sight whereof I had by the great favour of my worthy Friend M. Edward Thorneburgh one of the Canons Resident of that Church We have seene how farre the Diocesan was concern'd in the Erection Endowment of a Church or Monasterie it remaineth that wee now consider him in that which appertaineth to the Filling For a Monasterie certaine it is that none could be admitted but by the Bishops authoritie This was determined in severall Synods we note onely the forenamed Councell held at Nice because there also the reason of this is set downe let the Reader see the 14. Canon in the Latin Translation set forth by Turrian for those that are not so satisfied we shall shortly provide the Arabick Text if we be not otherwise prevented by those that are better able
or forced to forbeare for want of Characters As the Bishop was to be look't after by those that would come into a Religious House so also by those that would goe out So it seemeth by the Law of Alfred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Nunnan 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 If any leade a Nanne out of a Monasterie without the Kings leave or the Bishops hee shall pay 120 Shillings In the filling of Appropriations which were made over to the Religious Houses the Law saith that the Bishop had this power That he could binde the Proprietaries to set out for the Vicar Incumbent such a Convenable Portion of the Incomes as the Bishop in his judgement should be pleased to allot See Alexand. 3. to the * Bishop of Worcester De Prab dig C. De Monach. And there be that are well enough perswaded that the B. even now also ought in this Right to be acknowledged and the ground is for that it may be likely to stand without injurie to the Statute of Dissolution For it seemeth by the 27. of H. 8. c. 28. that these Lands are to be holden in as large and ample manner as the Proprietaries did then hold them or ought to have done And an other Clause of the same Statute Saveth to every Person and Persons and bodies politique c. other than Abbots c. all such right title interest c. as they or any of them hath ought or might have had c. But the consideration of this I restore to him from whom I had it The late learned Civilian in the Poore Vicars Plea where the Reader who desireth more of it may be further satisfied Now it is to bee observed how farre forth the Patron was to depend upon the Bishop for the filling of any other Church or Oratorie Most proper to this purpose is the Emperours Novell which was decreed litle lesse then eleven hundred yeares past about the latter end of the 5 Centurie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is If any man shall erect an Oratorie and his desire be to present a Clerke thereunto by himselfe or his heires if they furnish the Clerke with a Competencie and nominate to the Bishop such as are worthy they may be ordain'd But if those who are intimated by them be rejected by the Canons as unworthy of the Ministrie then let it be the care of the most Reverent Diocesan of the place to present such as in his discretion he shall conceive better of That we may the more certainly know what the Emperours minde is it must be considered out of Panormitan what is the meaning and originall of the Patrons Right which by the Canon is called Ius Patronatus and by the Common Law Advouson The Abbot out of the Law saith that this is Ius honorificum onerosum utile alicus competens in Ecclesia pro eo quod Diocesani consensu Ecclesiam fundavit construxit veldotavit ipse vel is à quo causam habuit Abb. in Rubric He therefore that founded a Church that is fundum dedit gave a piece of ground De Ier. Pat. C. Nobu He also that built a Church upon it 16. q. 7. c. Monasterium Or lastly he that endowed the Church built C. Piae Mentesibid was thenceforth qualified with this Right of Patronage But all this while it is especially to be noted that all this was done Consensu Dioesanâ— which seemeth to have beene so requisite by that of Clement C. Nobis De Iur. Patron Si quis Ecclesiam cum assensu Dioecesanâ— construxit ex eo lus Patronatus acquirit that if Ex eo should be referr'd to assensu nothing makes a Patron but the Will of the Diocesan And it is to bee understood that when a man dispendeth of his temporall estate towards the Founding Erecting or Endowing of a Church whatsoever shall be so conferred after consecration is actually delivered up and made over to God himselfe therefore it must needs be that from henceforth these things cannot properly belong either to the Bishop or the Patron for the Emperour saith Quod Divini juris est id nullius est in bonis Instit de Rerum Divisione §. Nullius rate that neither of them should presse too much the one upon the other and therefore in the beginning the usuall rate that they set downe betweene the beneficed man and the Religious person was the one halfe of the Benefice for that it was not thought that the Pope would charge a Church above that rate But after by the covetousnesse of Monkes and Friers themselves and the remisnesse of Bishops who had the managing of this businesse under the Apostolique See the Incumbents part came to so small a portion that Vrban the fifth by Othobon his Legate here in England in the yeare of Salvation 1262. was faine to make a Legantine whereby he forbad all Bishops of this Land to appropriate any more Churches to any Monasterie or other religious houses but in cases onely where the persons or places to whom they were appropriated were so poore as that otherwise they were not able to sustaine themselves or that the cause were so just that it might be taken rather to be a worke of charitie than any inforcement against Law and that beside with this provisâ— as that if the new proprietaries within sixe moneths next after should not set out a competent portion for the Minister of the fruits of the Benefice themselves should assigne out a sufficience thereout according to the quantitie thereof Which constitution because it tooke not the effect that was hoped there were two Statutes Only the dispensation of those things must be referr'd to Men And to that purpose who of all men could be more fit then the Bishop It seemeth therefore that the right of Presentation may be originally in the Diocesan and wee shall finde it hath beene so by a certaine passage recorded in the life of Bishop Vlrick where the Author faith That when any would build a Church in his Territorie the Bishop freely consented both to the Erection and Consecration Si confestim ille consecrata Ecclesia legitimam dotem in terrâ—s mancip 〈…〉 s in manum ejus celsitudinis dare non differret c. which is answerable to what was before said concerning the dowrie of a Church It followeth in the Author Consecrationeque per act à doteque contradita comprobato illic Prâ—sbytero altaris Procurationem commendarit Ecclesia Advocationem firmiter legitimo hareds panno imposito commendavit that the Consecration being ended and the Endowment delivered up the care of the Altar was committed to the Priest allowed and the Advouson firmely conveighed to the lawfull heire by the putting on of a Robe Author vita Vdalrici C. 7. p. 52. edit August Vindel. 1595. It is now time to consider how farre forth the Bishop departed with this Right to the Lay Patron and for what causes Wee have said that the Bishops Right was not to the things