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
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
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
grow more headstrong and insolent by the Indulgence which the Law gives them then observe whether they observe those Conditions on which the Law gives it to them For these are known Rules in Law That he forfeits his Privilege who goes beyond the Bounds of it That no Privileges are to be extended beyond the Bounds which the Laws give them for they ought to be observed as they are given I leave it to be considered whether all such who do not observe the Conditions of the Indulgence be not as liable to the Law as if they had none But there is a very profane Abuse of this Liberty among some as tho' it were an Indulgence not to serve God at all Such as these as they were never intended by the Law so they ought to enjoy no Benefit by it For this were to countenance Profaneness and Irreligion which I am afraid will grow too much upon us unless some effectual Care be taken to suppress it VII There is another Duty incumbent upon you which I must particularly recommend to your Care and that is of Visiting the Sick I do not mean barely to perform the Office prescribed which is of very good Use and ought not to be neglected but a particular Application of your selves to the State and Condition of the Persons you visit It is no hard matter to run over some Prayers and so take leave but this doth not come up to the Design of our Church in that Office For after the general Exhoratation and Profession of the Christian Faith our Church requires That the sick Person be moved to make special Confession of his Sins if he feel his Conscience troubled with any weighty matter and then if the sick Person humbly and heartily desires it he is to be absolved after this manner Our Lord Iesus Christ who hath left Power in his Church to absolve all Sinners who truly repent and believe in him c. Where the power of Absolution is grounded upon the Supposition of true Faith and Repentance and therefore when it is said afterwards And by his Authority committed to me I absolve thee from the same c. it must proceed on the same Supposition For the Church cannot absolve when God doth not So that all the real Comfort of the Absolution depends upon the Satisfaction of the person's Mind as to the Sincerity of his Repentance and Faith in Christ. Now here lies the great Difficulty of this Office how to give your selves and the wounded Conscience Satisfaction as to the Sincerity of those Acts I do not mean as to the Sincerity of his present Thoughts but as to the Acceptableness of his Faith and Repentance with God in order to Remission of Sins But what if you find the Persons so ignorant as not to understand what Faith and Repentance mean What if they have led such careless and secure lives in this World as hardly ever to have had one serious Thought of another Is nothing to be done but to come and pray by them and so dismiss them into their Eternal State Is this all the good you can or are bound to do them I confess it is a very uncomfortable thing to tell Men how they are to begin to live when they are liker to die than to live and the People generally have a strange superstitious Fear of sending for the Minister while there is any hope of Recovery But at last you are sent for and what a melancholy Work are you then to go about You are it may be to make a Man sensible of his Sins who never before considered what they were or against whom they were committed or what eternal Misery he deserves by committing them But I will suppose the best I can in this Case viz. That by your warm and serious Discourse you throughly awaken the Conscience of a long and habitual Sinner what are you then to do Will you presently apply all the Promises of Grace and Salvation to one whose Conscience is awakened only with the Fears of Death and the Terrors of a Day of Judgment This I confess is a hard Case on the one side we must not discourage good Beginnings in any we must not cast an awakened Sinner into Despair we must not limit the infinite Mercy of God But on the other side we must have a great care of incouraging presumptuous Sinners to put off their Repentance to the last because then upon Confession of their Sins they can so easily obtain the Churches Absolution which goes no farther than truly Repenting and Believing But here is the difficulty how we can satisfie our selves that these do truly Repent and Believe who are out of a Capacity of giving Proof of their Sincerity by Amendment of Life I do not question the Sincerity of their present Purposes but how often do we find those to come to nothing when they recover and fall into the former Temptations How then shall they know their own Sincerity till it be tried How can it be tried when they are going out of the State of Trial The most we can do is to encourage them to do the best they can in their present Condition and to shew as many of the Fruits of true Repentance as their Circumstances will allow and with the greatest Humility of Mind and most earnest Supplications to implore the infinite Mercy of God to their Souls But besides these there are many Cases of sick Persons which require very particular Advice and Spiritual Direction which you ought to be able to give them and it cannot be done without some good Measure of Skill and Experience in casuistical Divinity As How to satisfie a doubting Conscience as to its own Sincerity when so many Infirmities are mixed with our best Actions How a Sinner who hath relapsed after Repentance can be satisfied of the Truth of his Repentance when he doth not know but he may farther relapse upon fresh Temptations How he shall know what Failings are consistent with the State of Grace and the Hopes of Heaven and what not What Measure of Conviction and Power of Resistance is necessary to make Sins to be wilful and presumptuous What the just Measures of Restitution are in order to true Repentance in all such Injuries which are capable of it I might name many others but these I only mention to shew how necessary it is for you to apply your selves to Moral and Casuistical Divinity and not to content your selves barely with the Knowledge of what is called Positive and Controversial I am afraid there are too many who think they need to look after no more than what qualifies them for the Pulpit and I wish all did take sufficient care of that but if we would do our Duty as we ought we must inquire into and be able to resolve Cases of Conscience For the Priests Lips should keep this kind of Knowledge and the People should seek the Law at his Mouth for he is the Messenger of the
Bishop to be translated from that Place he was first Consecrated to as well as to hold another with it But the Good of the Church being the main Foundation of all the Rules of it when that might be better promoted by a Translation it was by a tacit Consent looked on as no unjust Violation of its Rules The Question then is Whether the Churches Benefit may not in some Cases make the Canons against Non-Residence as Dispensible as those against Translations And the Resolution of it doth not depend upon the voiding the particular Obligation of the Incumbent to his Cure but upon some more general Reason with respect to the State of the Church as being imployed in the Service of it which requires a Persons having not a bare Competency for Subsistence but a Sufficiency to provide Necessaries for such Service For those seem to have very little regard to the flourishing Condition of a Church who would confine the Sufficiency of a Subsistence meerly to the Necessaries of Life But it seems to be reasonable that Clergymen should have Incouragement sufficient not only to keep them above Contempt but in some respect agreeable to the more ample Provision of other Orders of Men. And by God's own Appointment the Tribe of Levi did not fall short of any of the rest if it did not very much exceed the Proportion of others We do not pretend to the Privileges they had only we observe from thence that God himself did appoint a plentiful Subsistence for those who attended upon his Service And I do not know what there is Levitical or Ceremonial in that I am sure the Duties of the Clergy now require a greater Freedom of Mind from the anxious Cares of the World than the Imployments of the Priests and Levites under the Law But we need not go so far back if the Church enjoyed all her Revenues as entirely as when the severe Canons against Pluralities were made there would not be such a Plea for them as there is too much Cause for in some Places from the Want of a competent Subsistence But since that time the Abundance of Appropriations since turned into Lay-Fees hath extreamly lessened the Churches Revenues and have left us a great Number of poor Vicarages and Arbitrary Cures which would hardly have afforded a Maintenance for the Nethinims under the Law who were only to be Hewers of Wood and Drawers of Water But this doth not yet clear the Difficulty For the Question is Whether the Subsistence of the Clergy can lawfully be improved by a Plurality of Livings Truly I think this if it be allowed in some Cases lawful to be the least desirable way of any but in some Circumstances it is much more excusable than in others As when the Benefices are mean when they lie near each other when great care is taken to put in sufficient Curates with good Allowance when Persons take all Opportunities to do their Duties themselves and do not live at a distance from their Benefices in an idle and careless manner But for Men to put in Curates meerly to satisfie the Law and to mind nothing of the Duties of their Places is a horrible Scandal to Religion and our Church and that which if not amended may justly bring down the Wrath of God upon us For the loosest of all the Popish Casuists look upon this as a very great Sin even those who attributed to the Pope the highest Dispensing Power in this Case But when the great Liberty of Dispensing had made the Ecclesiastical Laws in great measure useless then it was thought fit by our Law-makers to restrain and limit it by a Statute made 21 H. VIII wherein it is Enacted That if any Person or Persons having one Benefice with Cure of Souls being of the yearly Value of Eight Pounds or above accept or take any other with Cure of Souls and be instituted and inducted in Possession of the same that then and immediately after such Possession had thereof the first Benefice shall be adjudged to be void And all Licenses and Dispensations to the contrary are declared to be void and of none effect This one would have thought had been an effectual Remedy against all such Pluralities and Dispensations to obtain them and this no doubt was the primary Design of the Law but then follow so many Proviso's of Qualified Men to get Dispensations as take off a great deal of the Force and Effect of this Law But then it ought well to be consider'd Whether such a License being against the chief Design of a Law can satisfie any Man in point of Conscience where there is not a just and sufficient Cause For if the Pope's Dispensation with the supposed Plenitude of his Power could not satisfie a Man's Conscience without an antecedent Cause as the Casuists resolve much less can such Proviso's do it It is the general Opinion of Divines and Lawyers saith Lessius That no Man is safe in Conscience by the Pope's Dispensation for Pluralities unless there be a just cause for it No Man can with a safe Conscience take a Dispensation from the Pope for more Benefices than one meerly for his own Advantage saith Panormitan and from him Sylvester and Summ. Angelica A Dispensation saith Cardinal To-let secures a Man as to the Law but as to Conscience there must be a good cause for it and that is when the Church hath more Benefit by it than it would have without it But the Pope's Dispensing Power went much farther in point of Conscience in their Opinion than that which is setled among us by Act of Parliament For it is expressed in the Statute of 21 Hen. VIII That the Dispensation is intended to keep Men from incurring the Danger Penalty and Forfeiture in the Statute comprised So that the most qualified Person can only say that the Law doth not deprive him but he can never plead that it can satisfie him in point of Conscience unless there be some Cause for it which is of more Moment to the Church than a Man 's sole and constant Attendance on a particular Cure is But this Statute is more favourable to the Clergy than the Canon Law was before in two Particulars 1. In declaring that no simple Benefices or meer Dignities as the Canonists call them are comprehended under the Name of Benefices having Cure of Souls viz. no Deanary Archdeaconry Chancellorship Treasurership Chantership or Prebend in any Cathedral or Collegiate Church nor Parsonage that hath a Vicar endowed nor any Benefice perpetually appropriate But all these before were within the reach of the Canon Law and a Dispensation was necessary for them Which shews that this Law had a particular respect to the necessary Attendance on Parochial Cures and looked on other Dignities and Preferments in the Church as a sufficient Encouragement to extraordinary Merit 2. That no notice is taken of Livings under the Valuation of 8 l. which I suppose is that of 20 E. 1.
to their Brethren and answer to the Accusations brought against them But suppose they will not and others of the Brethren say they ought not and so fall into Heats and Disputes among themselves about it and make new Parties and Divisions Is not this an admirable Way of preserving Peace and Order and Discipline in a Church And I am as certain this is not the Way of Christ's appointing as I am that God is the God of Order and not of Confusion and that when Christ left the Legacy of Peace to his Church he left a Power in some to see his Will performed But these things can never be objected against us for all are Members of the same Body and are governed by certain and known Rules and if any be guilty of open Violation of it the Way is open to accuse and prosecute them and if they be found guilty the Censures of the Church will render them uncapable of doing it in such a Station or at least to bring them to Confession of their Fault and Promise of future Amendment And now I leave any one to judge whether the Parochial Clergy are not under greater and better Discipline than the Teachers of the separate Congregations II. But the great Complaint of such Men is That we want Parochial and Congregational Discipline so that Faults should be examined and punished where they have been committed but instead of that all Matters are drawn into the Ecclesiastical Court and there Causes are managed so as looks rather like a Design to punish Men in their Purses than for their Faults and the Delays are so great that the Court it self seems to be designed for Penance and grows very uneasie even to those who are the Members of our Church And some think that the proceeding against Men upon Articles of Enquiry not so agreeable to the Rights and Liberties of Mankind In answer to this I shall consider 1. The Proceedings upon Enquiry at Visitations 2. The Method of Proceeding in the Ecclesiastical Courts 3. The Inconveniencies of parochial Discipline 1. As to Enquiries at Visitations They were grounded upon one of the main Pillars of our Law viz. an ancient immemorial Custom founded upon good Reason In the first Canons that ever were made in this Church under Theodore Archbishop of Canterbury the second is That every Bishop is to look after the Government of his own Diocess and not to invade anothers And that in so doing they went about their Diocesses in order to an Enquiry and Correction of Miscarriages is evident from the Council under Cuthbert Archbishop of Canterbury Can. 3. 25. the first Council at Calechyth Can. 3. the Constitutions of Odo Archbishop of Canterbury Can. 3. and the Canon of Edgar Can. 3. But in these Saxon times the Visitations were annual which were found inconvenient and therefore in the Norman times the Archdeacons were taken into a part of the Jurisdiction under the Bishop and visited those years the Bishop did not But we meet with no Archdeacons with any kind of Jurisdiction in the Saxon times we read indeed sometimes of the Name of Archdeacons but they had nothing to do in the Diocess but only attended the Bishop at Ordinations and other publick Services in the Cathedral Lanfranc was the first who made an Archdeacon with Jurisdiction in his See And Thomas first Archbishop of York after the Conquest was the first who divided his Diocess into Archdeaconries and so did Remigius Bishop of Lincoln his large Diocess into Seven Archdeaconries saith H. of Huntingdon And so it was with the rest of which there were two Occasions 1. The laying aside the Corepiscopi in the Western Parts as assuming too much to themselves 2. The publick Services which the Bishops were more strictly tied to as the King's Barons in the Norman times Which was the Reason not only of taking in Archdeacons but likewise of Archpresbyters or Rural-Deans who had some Inspection into the several Deanaries and assisted the Bishop in such things as they were appointed to do and then came in the other Ecclesiastical Officers as Vicars General Chancellors Commissaries c. for we read not of them here at all in the Saxon times but about the time of Hen. II. the Bishops took them for their Assistance in Dispatch of Causes when the King required their strict Attendance on the publick Affairs in the Supreme Court of Parliament 2. As to the Method of Proceeding in the Ecclesiastical Courts it is no other than hath been continued here without Interruption till of late years ever since the Conquest For the Consistory-Court and the Rules of Proceeding there were established by a Law in the time of William the First As far as I can find by King Edward's Laws c. 4. the Bishops did then proceed by the Ecclesiastical Laws although they then sat in the County-Court but this caused so much Confusion that William by a general Consent and a Charter directed to all the People of England doth separate the Ecclesiastical from the Temporal Courts which was enrolled as good Law 2 R. 2. upon occasion of a Suit of the Dean and Chapter of Lincoln and therefore the Charter of Remigius Bishop of Lincoln is more mentioned than others but the same was to all the Bishops and Counties of England as appears by other Copies of it Thus the Consistory-Court was first established as a distinct Court from the County-Court which it was not in the Saxon times for then the Bishop sate with the Civil Magistrate in the same Court and Ecclesiastical Causes were first heard and decided there It seems the People wer very unwilling to go to a new Place and therefore the Law is inforced with severe Penalties for Contempt And those who object against the Reasonableness of the Method of Proceeding in those Courts must reflect upon some of the wisest Nations in the World who have gone upon the same Grounds in all that have received the Civil Law and upon some of the greatest Courts at this time in the Kingdom as the Chancery and Admiralty which go by the same Fundamental Rules As to any Objections which arise from the personal Faults of those who are imployed in them that reaches I am afraid to all Courts and it ought to be the Work and Business of those who look after them to do what in them lies to reform them that others Faults may not be laid at their Doors 3. But for those who would have a Parochial or Congregational Discipline set up as much better and more effectual I shall desire them to consider that since Matters of Discipline are such as that in them the Reputation and Interest of Persons is very much concerned they ought not to be left to Arbitrary Proceedings of any Persons but they ought to be managed by the certain and common Rules of Justice since every Man hath a Right to defend himself when he is accused And unless there be known and
Saxon times there were both here There were Ecclesiastical Law which related to Judicial Cases wherein a publick Penance was injoyned in order to the Churches Satisfaction But there were many Cases which were not publick and yet great Care was to be used as to the Direction of Penitents as appears by the Penitentials of Theodore and Bede in the Saxon times Whereby we learn that a Difference was to be observed as to the Nature of Offences and the Circumstances of Persons and Actions and the Measure of Contrition and the particular Method is set down in the penitential Books which was in very material Circumstances different from the Methods used in the Church of Rome But it is a thing necessary for every parochial Minister to be able to settle doubting Consciences and to put them into the best Methods of avoiding Sin for the future without which the Absolution of the Priest signifies nothing For where God doth not absolve the Church cannot 5. Giving a good Example to the People committed to your Charge This is often mentioned in the Saxon Canons Council at Cloveshoo c. 8. Canons of Egbert 14 15 18 19 33. in the Laws of Alfred c. 3. of Edward c. 3. Constit. of Odo c. 4 5. of Edgar 57 58 59 60 61 64. of Canutus c. 26. And in the Conclusion of one Collection of his Laws are these Words Happy is that Shepherd who by his good Life and Doctrine leads his Flock to Eternal and Heavenly Ioys and happy is that Flock that follows such a Shepherd who hath rescued them out of the Devil's Hands and put them into God's 6. Lastly the Performance of all these Duties supposes a constant Residence among your People without which it is impossible to discharge them in such a manner as to give them and your selves full Satisfaction This I am sensible is a very nice and tender Point and the Difficulties of it do arise from these things On one side it is said 1. That there is an Allowance by the Law given to several Persons to hold more Benefices than one and since the Distribution of Benefices is not by the Law of God but by the Law of the Land what Fault is there in making use of the Privileges which the Law gives But there cannot be constant Residence in more Places than one 2. That the general Service of the Church is more to be preferred than taking Care of a particular Parish because the necessary Duties of a Parish may be supplied by persons approved by the Bishop and a single Living seldom affords a sufficient Competency for persons to be capable of publick Service 3. That the way of Subsistence for the Clergy is now much altered from what it was when Celibacy was enjoyned For a Competency was always supposed where Residence was strictly required and what was a Competency to a single person is not so to a Family 4. That the Church hath a power of Relaxing the Severity of Ancient Canons from the different Circumstances of things and when the general Good of the Church may be more promoted therein as in the Removal of Clergymen from one Diocess to another and the Translation of Bishops 5. That the Case is now very different as to Dispensations from what it was in the Church of Rome as to the Number of Benefices and the manner of obtaining them that a great Restraint is laid by our Laws upon Pluralities and our own Metropolitan is the Judge when they are fit to be granted But on the other side it is objected 1. That in the first Constitution of parochial Churches every Incumbent was bound to a strict Residence so in the Canons of Egbert Can. 25. Presbyters are said to be settled in those Churches which had a House and Glebe belonging to them and many Canons were then expresly made That no Person should have more than one Church and it is said in the Capitulars that this had been several times decreed And so it is in Herardus his Collection of Canons Can. 49. in Isaac Lingonensis Tit. 1. c. 24. in Chrodegangus c. 67. in Ivo Carnotensis part 3. c. 51. in Regino l. 1. c. 254. The like we find in the Spanish Churches Concil Tolet. 16. c. 5. and thence in the Canonâ—Law C. 10. Q. 3. c. 3. and in the Greek Churches Concil 7. Can. 15. C. 21. Q. 1. c. 1. And as soon as the Abuse crept in in these Western Churches it was complained of and endeavoured to be redressed Concil Paris 6. c. 49. Concil Aquisgran 2. part 2. c. 5. Concil Metens c. 3. That afterwards not meerly the Mendicant Friars complained of them as some have suggested but some of the greatest Bishops have been zealous against them as Gulielmus Parisiensis Peraldus Archbishop of Lions Iacobus de Vitriaco Bishop of Acon Robert de Câ—orton Cardinal Guiard Bishop of Cambray and Gregory IX declared That he could only dispense with the Penalty of the Law After a solemn Disputation at Paris it was determined against Pluralities if one Benefice be sufficient and all the Divines joyned with the Bishop therein except two so that it seemed to be the current Opinion of the Learned and Pious Men of that Time Aquinas saith It is a doubtful Point but Cajetan is positive against them So that all the Zeal against Pluralities is not to be imputed to the Piques of the Friars against the Secular Clergy although there is no Question but they were so much the more earnest in it but in the Council of Trent the Bishops of Spain were the most zealous as to the Point of Residence and the Friars against it as appears by Catharinus and others 2. Setting aside all Authorities the Argument in Point of Conscience seems the strongest against Non-residence because persons have voluntarily undertaken the Cure of Souls within such Limits and although the Bounds be fixed by Human Authority yet since he hath undertaken such a Charge personally knowing those Bounds it lies upon his Conscience to discharge the Duties incumbent upon him which cannot be done without constant Residence as the Magistrates are bound in Conscience to do their Duty although the Bounds are settled by Human Laws And so in the case of Property Human Laws bind so that it is a Sin to invade what is settled by them And if it be left to a Man's Conscience whether a Man answers his Obligation more by personal Attendance or by a Curate whether the Honour of Religion and the Good of Souls be more promoted and the Peace of his own Mind secured by one or the other it is no hard matter to judge on which side it must go It is impossible to defend all the Arguments used in the old Canons against Pluralities as that Polygamy is unlawful under the Gospel So that as a Bishop hath but one City and a Man but one Wife so a Presbyter ought to have but one
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
nothing else but the common Custom of the Realm My Lord Chief Justice Hales saith That the common Usage Custom and Practice of the Kingdom is one of the main Constituents of our Law Coke quotes Bracton ' s Authority to prove That Custom obtains among us the Force of a Law where it is received and approved by long Use. And of every Custom he saith there be two Essential Parts Time and Usage Time out of Mind and continual and peaceable Usage without Interruption But in Case of Prescription or Custom he saith That an Interruption of Ten or Twenty Years hinders not the Title but an Interruption in the Right the other is only an actual Suspension for a time It may be asked How Time and Usage come to make Laws since Time hath no Operation in Law saith Grotius Not of it self as Grotius there saith but with the Concurrence of other Circumstances it may Bracton saith longa possessio parit jus possidendi and by a long and peaceable Possession Dominion is transferred without either Title or Delivery which he founds on this good Reason That all Claims of Right ought to have a certain Limitation of Time and length of Time takes away any Proof to the contrary Littleton saith That Time out of Memory of Man is said to give Right because no Proof can be brought beyond it And this he calls Prescription at Common Law as it is distinguished from Prescription by the several Statutes of Limitations But whence is it then that an immemorial Possession gives Right Is it from the meer Silence of the Parties concerned to claim it No Silence gives no Consent where Ignorance or Fear may be the Cause of it And is it a Punishment upon the Neglect of the Party concerned So Bracton saith Time doth it per patientiam negligentiam veri Domini But meer Neglect doth not overthrow Right unless there be an antecedent Law to make that Neglect a Forfeiture Is it from a Presumptive Dereliction But that supposes not bare Continuance of Time but some kind of voluntary Act which implies a sort of Consent which doth not appear in this Case And it is a great Mistake in those who think there is no Presumptive Dereliction where there is not a full Consent for it may be where there is the Consent of a mixt Will i.e. partly voluntary and partly involuntary when the Circumstances are such as the Person rather chuses to leave his Right than submit to the lawful Conditions of enjoying it As if a Man would rather quit his Fee than perform the Service which belongs to it Is it from the common Interest of Mankind that some Bounds be fixed to all Claims of Right Because otherwise that Men will be liable to perpetual Disturbance if the Right be permitted to be claimed beyond any possibility of Proof Or is it lastly that in such Nations where immemorial Custom obtains the Force of a Law it seems agreeable to the Foundations of Law that a long continued Possession should carry Right along with it And this was the Case here in England as not only appears by what Bracton hath said but Glanvil makes a great part of our Law to consist of reasonable Customs of long Continuance And St. Germain affirms Ancient general Customs to be one of the principal Foundations of our Law and that they have the Force of Laws and that the King is bound by his Oath to perform them And it is worth our while to observe what general Customs he doth instance in as the Courts of Equity and Law the Hundred Court the Sheriffs Turn the Court Baron c. which depend not upon Acts of Parliament but the Ancient Custom of England which he calls the Common Law And among these Ancient Customs he reckons up Rights of Descent Escheats the different sorts of Tenures Freeholds and the Laws of Property as they are received among us We are now to enquire how far any of our Ecclesiastical Constitutions can be said to be built upon this Foundation and upon immemorial Custom generally received 1. I place 1. the Distribution of this National Church into two Provinces in each whereof there is an Archbishop with Metropolitical Power which lies chiefly in these things 1. The Right of Consecration of his Suffragans 2. The Right of Visitation of every Diocess in such Way and Manner as Custom hath settled it 3. The Right of receiving Appeals from Inferiour Courts of Judicature in Ecclesiastical Matters 4. The Right of presiding in Provincial Councils of the Suffragans of his Province which by the most Ancient Constitutions of this Church were to be held once a Year so it was decreed in the Council under Theodore A. D. 673. but by the Difficulties of the times they were discontinued and so the Authority of examining things through the Province came by a kind of Devolution to the Archbishop and his Courts 5. The Custody of vacant Sees by the Custom of England falls to the Metropolitan if there hath been no Custom or Composition to the contrary And so it hath been upon solemn Debates resolved in our Courts of Common Law Coke thinks that of common Right it belongs to the Dean and Chapter but by Custom to the Archbishop But Panormitan saith There was no Pretence of common Right for them till the time of Boniface VIII 2. The ordinary Jurisdiction of every Bishop over the Clergy of his own Diocess This is as ancient as Christianity among us For no sooner were Churches planted but there were Bishops set over them who had from the Beginning so much Authority that none of the Clergy could either receive or quit his Benefice without their Consent and Approbation and they were all bound to give an Account of their Behaviour at their Visitations and in case of Contempt or other Misdemeamours they were to proceed against them according to the Canons of the Church I do not say the Diocesses were at first all modelled alike or with the same Bounds which they now have which was unreasonable to suppose considering the gradual Conversion of the Nation For at first there was but one Bishop in every one of the Saxon Kingdoms except Kent where was but one Suffragan to the Metropolitan for some time till the Kingdoms came to be united or the Kings consented to an Increase of several Diocesses and uniting them under one Metropolitan which was a Work of Time But in all the Saxon Councils we find no mention of any Ecclesiastical Jurisdiction but what was in the Bishops themselves Concil Cloveshoo Can. 1 4 5. Concil Cealchyth Can. 1. Egbert Canon c. 45 62. The first who began to seek for Exemptions were the Abbots who were under the Bishop's Jurisdiction who was too near them and therefore they endeavoured to get under the Pope's immediate Jurisdiction by Charters of Exemption which the great Abbies either procured or made
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
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